WTO Dispute Settlement Mechanism(6)

Chapter VI
General Rules of Evidence
under the WTO Jurisprudence


OUTLINE

I Burden 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
II Admissibility 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.
III Panel’s Right to Seek Information
(ⅰ) A Grant of Discretionary Authority
(ⅱ) The Admissibility of Non-requested Information
(ⅲ) Summary and Conclusions
IV Adverse 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
V Concluding Remarks

I Burden 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, “[w]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 complainin

g 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 ru

le applicable in any adversarial proceedings.’” 4
As a whole, on the one hand, as ruled by the Panel in Argentina-Ceramic Floor Tiles (DS189), “[w]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), “[t]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): “[w]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), “[i]n the context of the GATT 1994 and the WTO Agreement precisely how much and precisely what kind of evidence will be required to establish such a presumption will necessarily vary from measure to measure, provision to provision and case to case”.8
(ii) Burden of Proof in case of Invoking an Exception
As discussed above, generally, the burden of proof rests upon the party, whether complaining or defending, who asserts a fact or the affirmative of a particular claim or defence. As to be shown, this rule applies equally even in case of invoking an exception.
In this context, it is a general principle of law, well-established by panels in prior GATT/WTO practice, that the party (the defendant) which invokes an exception in order to justify its action carries the burden of proof that it has fulfilled the conditions for invoking the exception. However, in the author’s view, to understand the issue concerning burden of proof in case of invoking an exception, which is different from the relatively clear burden of establishing a prima facie case of violation on the complaini

ng party, it’s helpful to stress some points here, among which the key point is to be cautious while determine which defence is “affirmative” and therefore burdens the defendant to provide sufficient evidence to rebut the challenged violation.
In United States-Shirts and Blouses (DS33), India argues that it was “customary GATT practice” that the party invoking a provision which had been identified as an exception must offer proof that the conditions set out in that provision were met. The Appellate Body acknowledges that several GATT 1947 and WTO panels have required such proof of a party invoking a defence, such as those found in Art. XX or Art. XI:2(c)(i), to a claim of violation of a GATT obligation, such as those found in Arts. I:1, II:1, III or XI:1. Arts. XX and XI:(2)(c)(i) are limited exceptions from obligations under certain other provisions of the GATT 1994, not positive rules establishing obligations in themselves. They are in the nature of affirmative defences. It is only reasonable that the burden of establishing such a defence, i.e. invoking an exception in the nature of affirmative defences, should rest on the party asserting it. 9
However, as ruled by the Appellate Body in EC-Hormones (DS26/DS48), “[t]he general rule in a dispute settlement proceeding requiring a complaining party to establish a prima facie case of inconsistency with a provision of …[the covered agreements] before the burden of showing consistency with that provision is taken on by the defending party, is not avoided by simply describing that same provision as an ‘exception’. In much the same way, merely characterizing a treaty provision as an ‘exception’ does not by itself justify a ‘stricter’ or ‘narrower’ interpretation of that provision than would be warranted by examination of the ordinary meaning of the actual treaty words, viewed in context and in the light of the treaty's object and purpose, or, in other words, by applying the normal rules of treaty interpretation. It is also well to remember 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.” 10
In short, during the process of the establishment of a violation, it’s generally up to the complainant to provide evidence concerning inconsistency, and only in case of limited exceptions the burden of proof rests upon the defending party invoking a defence in the nature of affirmative defences, such as those found in Art. XX or Art. XI:2(c)(i) of the GATT 1994.
(iii) Special Rules Concerning Non-Violation Claims
As suggested by the corresponding provisions, the most significant difference between violation complaints under Art. XXIII:1(a) of the GATT 1994 and non-violation ones under Art. XXIII:1(b) is, while, when violation complaints are brought under Art. XXIII:1(a), the infringement of an obligation of the agreements is considered pr

ima facie to constitute a case of nullification or impairment, from the fact of violation alone, by establishing a formal presumption, such a presumption does not exist in non-violation cases.
With the lack of such a presumption, and given the nature of the factually complex disputes and particular claims of non-violation nullification or impairment, the resolution of issues relating to the proper allocation of the burden of proof is of particular importance. In case of non-violation nullification or impairment, i.e., where the application of Art. XXIII:1(b) is concerned, Art. 26.1(a) of the DSU and panel practice in the context of the WTO Agreement and GATT jurisprudence confirm that this is an exceptional course of action for which the complaining party bears the burden of providing a detailed justification to back up its allegations.
This requirement has been recognized and applied by a number of GATT panels. For example, the panel on Uruguayan Recourse to Art. XXIII noted that in cases “where there is no infringement of GATT provisions, it would be ... incumbent on the country invoking Article XXIII to demonstrate the grounds and reasons for its invocation. Detailed submissions on the part of that contracting party on these points were therefore essential for a judgement to be made under this Article”. And the panel on US - Agricultural Waiver noted, in applying the 1979 codification of this rule: “The party bringing a complaint under [Article XXIII:1(b)] would normally be expected to explain in detail that benefits accruing to it under a tariff concession have been nullified or impaired”.
Art. 26.1(a) of the DSU codifies the prior GATT practice, which provides in relevant part: “the complaining party shall present a detailed justification in support of any complaint relating to a measure which does not conflict with the relevant covered agreement ...”.
And in Japan – Film (DS44), the Panel confirms the rule on burden of proof in the context of non-violation complaints under Art. XXIII:1(b): “Consistent with the explicit terms of the DSU and established WTO/GATT jurisprudence, and recalling the Appellate Body ruling that ‘precisely how much and precisely what kind of evidence will be required to establish ... a presumption will necessarily vary from ... provision to provision’, we thus consider that the United States [the complaining party], 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 Japan [the defendant] to rebut any such presumption.” 11
(iv) Summary and Conclusions
To sum up, in the context of violation complaints under Art. 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 Art. 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”.

II Admissibility of Certain Evidences
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.
(i) Evidence Obtained from Prior Consultations
According to the WTO jurisprudence, the DSB is not involved in consultations process although they are a crucial and integral part of the DSU. Nothing in the text of the DSU or other covered agreements provides that the scope of a panel's work is governed by the scope of prior consultations.13 However, as to be noted below, panels won’t preclude those evidences merely because they are obtained during the course of consultations. Indeed, information obtained during the course of consultations may enable the complainant to focus the scop

e of the matter with respect to which it seeks establishment of a panel, thus, to some extent will assist panel’s examination of measures at issue to make objective assessment with the access of such information offered to the panel.
（a）Procedural Concern: Confidentiality of Consultations
In Australia-Automotive Leather (DS126), Australia appears to be asking the Panel to rule that, the United States is limited to relying on the facts and arguments explicitly set out in its request for consultations in presenting its case to the Panel. As to this objection, the Panel rules as follows: 14
“As Australia rightly notes, Article 4.6 of the DSU provides that ‘[c]onsultations shall be confidential, and without prejudice to the rights of any Member in any further proceedings’. However, in our view, this does not mean that facts and information developed in the course of consultations held pursuant to one request cannot be used in a panel proceeding concerning, as it does in this case, the same dispute, between the same parties, conducted pursuant to another, different request.
We recall that Article 11 of the DSU obliges a panel to conduct ‘a(chǎn)n objective assessment of the matter before it’. As discussed earlier, any evidentiary rulings we make must be consistent with this obligation. The panel in Korea - Taxes on Alcoholic Beverages recently confirmed the right of a party to a WTO dispute to use information learned in consultations in panel proceedings. After noting the requirement of confidentiality in Article 4.6 of the DSU, which the panel viewed as ‘essential if the parties are to be free to engage in meaningful consultations’, the panel continued: ‘However, it is our view that this confidentiality extends only as far as requiring the parties to the consultations not to disclose any information obtained in the consultations to any parties that were not involved in those consultations. We are mindful of the fact that the panel proceedings between the parties remain confidential, and parties do not thereby breach any confidentiality by disclosing in those proceedings information acquired during the consultations. Indeed, in our view, the very essence of consultations is to enable the parties [to] gather correct and relevant information, for purposes of assisting them in arriving at a mutually agreed solution, or failing which, to assist them in presenting accurate information to the panel. It would seriously hamper the dispute settlement process if the information acquired during consultations could not be subsequently used by any party in the ensuing proceedings’15.”
Furthermore, so far as the confidentiality of consultations is concerned, the admissibility of information obtained from consultations doesn’t alter as a result of third party participation in the panel proceedings. As ruled by the Panel in Mexico-HFCS (DS132): “it would seriously hamper the dispute settlement process if a party could not use information obtained in the con

sultations in subsequent panel proceedings merely because a third party which did not participate in the consultations chooses to participate in the panel proceedings. As … third party participation in the panel proceedings cannot be vetoed by the parties to the proceeding. In our view, it would be anomalous if the decision of a Member to participate in a panel proceeding as a third party when it did not, or could not, participate as a third party in the underlying consultations had the effect of limiting the evidence that could be relied upon in the panel proceeding by precluding the introduction of information obtained during the consultations. Third parties are subject to the same requirement to maintain the confidentiality of panel proceedings as are parties. We therefore conclude that the requirement to maintain the confidentiality of consultations is not violated by the inclusion of information obtained during consultations in the written submission of a party provided to a third party in the subsequent panel proceeding even if that third party did not participate in the consultations.” 16
(b) Substantial Concern: Necessity or Relevance of Evidence
In EC-Bed Linen (DS141), the Panel notes that it seems that the evidence concerning the consultations is at best unnecessary, and may be irrelevant. However, the Panel rules that, that said, “merely because the evidence is unnecessary or irrelevant does not require us to exclude it”. And they come to this ruling by stating: 17
“A panel is obligated by Article 11 of the DSU to conduct ‘a(chǎn)n objective assessment of the matter before it’. The Panel in Australia-Automotive Leather observed that:
‘Any evidentiary rulings we make must, therefore, be consistent with this obligation. In our view, a decision to limit the facts and arguments that the United States may present during the course of this proceeding to those set forth in the request for consultations would make it difficult, if not impossible, for us to fulfill our obligation to conduct an "objective assessment" of the matter before us.’
Similarly in this case, we consider that it is not necessary to limit the facts and arguments India may present, even if we might consider those facts or arguments to be irrelevant or not probative on the issues before us. In our view, there is a significant and substantive difference between questions concerning the admissibility of evidence, and the weight to be accorded evidence in making our decisions. That is, we may choose to allow parties to present evidence, but subsequently not consider that evidence, because it is not relevant or necessary to our determinations or is not probative on the issues before it. In our view, there is little to be gained by expending our time and effort in ruling on points of ‘a(chǎn)dmissibility’ of evidence vel non. ”
In addition, under Art. 13.2 of the DSU, panels have a general right to seek information “from any relevant source”. “In this context, we consider

that, as a general rule, panels have wide latitude in admitting evidence in WTO dispute settlement. The DSU contains no rule that might restrict the forms of evidence that panels may consider. Moreover, international tribunals are generally free to admit and evaluate evidence of every kind, and to ascribe to it the weight that they see fit. ”18
As one legal scholar has noted: “The inherent flexibility of the international procedure, and its tendency to be free from technical rules of evidence applied in municipal law, provide the ‘evidence’ with a wider scope in international proceedings . . . Generally speaking, international tribunals have not committed themselves to the restrictive rules of evidence in municipal law. They have found it justified to receive every kind and form of evidence, and have attached to them the probative value they deserve under the circumstances of a given case.”19
In sum, “[i]t has clearly been held in the WTO that information obtained in consultations may be presented in subsequent panel proceedings”.20 “This is unlike the situation before many international tribunals, which often refuse to admit evidence obtained during settlement negotiations between the parties to a dispute. The circumstances of such settlement negotiations are clearly different from WTO dispute settlement consultations, which are, as the Appellate Body has noted, part of the means by which facts are clarified before a panel proceeding.”21In all events, as ruled by the Panel in US-Line Pipe (DS202), “[o]ur decision not to exclude the information does not prejudge in any way the issue of whether the Panel will use the information, nor whether the information is relevant to the matter at hand.” 22 There is a significant and substantive difference between questions concerning the admissibility of evidence, and the weight to be accorded evidence in making decisions.
(ii) Arguments before Domestic Investigative Authorities
With respect to panels’ examination of factual determinations by domestic investigative authorities in fields concerning countervailing measures, anti-dumping duties and safeguards etc., the Appellate Body has ruled that, “[s]o far as fact-finding by panels is concerned, their activities are always constrained by the mandate of Article 11 of the DSU: the applicable standard is neither de novo review as such, nor ‘total deference’, but rather the ‘objective assessment of the facts’. Many panels have in the past refused to undertake de novo review, wisely, since under current practice and systems, they are in any case poorly suited to engage in such a review. On the other hand, ‘total deference to the findings of the national authorities’, it has been well said, ‘could not ensure an“objective assessment”as foreseen by Article 11 of the DSU’”.23 And the “nor ‘total deference’” standard suggests that panels will not simply accept the conclusions of the competent authorities. Then the following paragraphs will get down to the

issue of the admissibility of arguments or evidence raised before domestic investigative authorities. In this respect, the Appellate Body rules in US-Lamb Meat (DS177/DS178) that: 24
“In our report in Thailand - Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel H-Beams from Poland, in the course of our examination of the specificity of Poland's request for the establishment of a panel under Article 6.2 of the DSU, we said: ‘The Panel's reasoning seems to assume that there is always continuity between claims raised in an underlying anti-dumping investigation and claims raised by a complaining party in a related dispute brought before the WTO. This is not necessarily the case. The parties involved in an underlying anti-dumping investigation are generally exporters, importers and other commercial entities, while those involved in WTO dispute settlement are the Members of the WTO. Therefore, it cannot be assumed that the range of issues raised in an anti-dumping investigation will be the same as the claims that a Member chooses to bring before the WTO in a dispute.’
Although the claim under examination in that appeal was different, the same reasoning applies in respect of the relationship between domestic investigations culminating in the imposition of a safeguard measure, and dispute settlement proceedings under the DSU regarding that safeguard measure. In arguing claims in dispute settlement, a WTO Member is not confined merely to rehearsing arguments that were made to the competent authorities by the interested parties during the domestic investigation, even if the WTO Member was itself an interested party in that investigation. Likewise, panels are not obliged to determine, and confirm themselves the nature and character of the arguments made by the interested parties to the competent authorities. Arguments before national competent authorities may be influenced by, and focused on, the requirements of the national laws, regulations and procedures. On the other hand, dispute settlement proceedings brought under the DSU concerning safeguard measures imposed under the Agreement on Safeguards may involve arguments that were not submitted to the competent authorities by the interested parties.
Furthermore, we recall that, in United States - Wheat Gluten Safeguard, we reversed a finding by the panel that competent authorities are obliged to evaluate only those other relevant factors, under Article 4.2(a), which were actually raised by the interested parties during the investigation before it. We said there that competent authorities have an independent duty of investigation and that they cannot "remain passive in the face of possible short-comings in the evidence submitted, and views expressed, by the interested parties." In short, competent authorities are obliged, in some circumstances, to go beyond the arguments that were advanced by the interested parties during the investigation. As competent authorities themse

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