简介
This book examines the process through which a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a case, i.e. the process of fact-finding or process of proof. The Dispute Settlement Understanding provides general guidance but few direct answers to specific questions regarding the process of fact -finding, which has placed upon panels and the Appellate Body the responsibility to provide answers to those questions as they have arisen in the cases. This book reviews the extensive jurisprudence developed in the 14 years of operation of the WTO dispute settlement system with a view to determining wh ether panels and the Appellate Body have set out optimal rules to govern the process of fact-finding, and, to the extent that that is not the case, making suggestions for improvement. This book analyses issues such as (i) which party bears the responsibility of ultimately convincing the panel of the truth of a fact (burden of proof); (ii the quantum of proof necessary to convince the panel (standard of proof); (iii) the role of the panel, disputing parties, and nondisputing parties (e.g. experts, international organizations, private parties) in the development of the evidentiary record on which the panel bases its decision; (iv) the consequences of a party's failure to cooperate in the process of fact-finding; (v) how the parties can access the information which is necessary to prove their allegations; and (vi) the treatment of confidential business and governmental information. In assessing and making suggestions to improve the answers provided by panels to these questions, this book draws on the approaches followed in the two major legal systems of the world - the common law and the civil law - and also, where possible, those adopted by other international courts and tribunals.
目录
Contents 14
Table of Cases 18
List of Abbreviations 34
Introduction 36
I. Background 36
II. Outline of the Book 39
1 Optimizing the Process of Fact-Finding 44
Introduction 44
I. Legal Adjudication and the Process of Fact-Finding 45
A. The goals of legal adjudication 45
B. Optimization of goals 52
C. Managing uncertainty and the risk of error 54
II. The WTO Dispute Settlement System 56
A. A system of legal adjudication 56
B. The goals/values of the system 63
C. The institutional and procedural framework 77
Concluding Remarks 101
2 Basic Concepts 103
Introduction 103
I. The Concept of the Burden of Proof 105
A. General scope 105
B. Differences between the common law and the civil law systems 109
C. Proceedings before international courts and tribunals 115
D. Does the burden of proof shift? 118
II. Standard of Proof 121
A. General scope 121
B. Differences between common law and civil law systems 122
C. Proceedings before international courts and tribunals 124
III. Presumptions 128
A. General scope 128
B. International law including WTO law 131
Concluding Remarks 136
3 Functioning of the Burden of Proof 138
Introduction 138
I. The 'Prima Facie Case' or 'Presumption' Approach 140
A. Exploring the meaning of 'prima facie case' 140
B. The uses of a 'prima facie case' in WTO dispute settlement 143
C. Concluding remarks on the meaning of 'prima facie case' 167
II. The 'holistic' or 'weighing of all evidence' approach 167
A. What is the holistic approach? 167
B. The favoured approach for WTO dispute settlement 170
III. The Standard of Proof for WTO Dispute Settlement 172
A. The importance of setting a standard of proof 172
B. Considerations when setting the standard of proof 173
C. Is the prima facie case standard ever optimal? 177
Concluding Remarks 184
4 The Allocation of the Burden of Proof 186
Introduction 186
I. The Current Status of the WTO Rules 187
A. The problem at issue 187
B. The WTO jurisprudence 190
II. Critique of the WTO Jurisprudence 203
A. Have panels and the Appellate Body been consistent? 203
B. Are the criteria relied upon effective? 214
III. What are the Alternatives? 225
A. A look at domestic and international law 225
B. Can law and economics analysis help? 234
C. What are the options for the WTO dispute settlement system? 237
D. India\u2014Additional Import Duties: a paradigm shift? 250
IV. Allocation of the Burden of Proof in Article 21.5 of the DSU Compliance Cases 252
A. 'Regular' Article 21.5 proceedings 253
B. Post-suspension of concessions Article 21.5 proceedings 254
Concluding Remarks 258
Annex: Text of Relevant Provisions from WTO Agreements 260
5 The Main Actors in the Process of Fact-Finding and the Development of the Factual Record 266
Introduction 266
I. The Panel as a Reviewer 268
A. Trade remedies agreements 268
B. SPS and TBT Agreements 274
C. Final considerations 280
II. The Panel as the Original-Trier-of-Facts 281
A. Context: institutional and procedural framework 281
B. The role of the disputing parties 285
C. The role of the panel 339
Concluding Remarks 386
Conclusion 389
The route to optimizing the process of fact-finding 389
Conceptual clarity 390
The prima facie case requirement 390
The standard of proof for WTO dispute settlement 391
Determining that the standard of proof is met 392
Allocation of the burden of proof 393
Burden of pleading 393
Avoiding decisions based on the burden of proof 394
Duty of cooperation 394
The role of the panel in promoting cooperation 395
Alternatives to managing asymmetries of information 396
Confidential information 397
Panel-controlled disclosure 398
Active panel 398
Final considerations and way forward 399
Appendix: Understanding on Rules and Procedures Governing the Settlement of Disputes 400
Bibliography 422
Index 442
A 442
B 442
C 443
D 443
E 443
F 444
G 444
I 444
J 444
M 444
N 444
O 444
P 444
R 445
S 445
T 445
U 445
V 445
Table of Cases 18
List of Abbreviations 34
Introduction 36
I. Background 36
II. Outline of the Book 39
1 Optimizing the Process of Fact-Finding 44
Introduction 44
I. Legal Adjudication and the Process of Fact-Finding 45
A. The goals of legal adjudication 45
B. Optimization of goals 52
C. Managing uncertainty and the risk of error 54
II. The WTO Dispute Settlement System 56
A. A system of legal adjudication 56
B. The goals/values of the system 63
C. The institutional and procedural framework 77
Concluding Remarks 101
2 Basic Concepts 103
Introduction 103
I. The Concept of the Burden of Proof 105
A. General scope 105
B. Differences between the common law and the civil law systems 109
C. Proceedings before international courts and tribunals 115
D. Does the burden of proof shift? 118
II. Standard of Proof 121
A. General scope 121
B. Differences between common law and civil law systems 122
C. Proceedings before international courts and tribunals 124
III. Presumptions 128
A. General scope 128
B. International law including WTO law 131
Concluding Remarks 136
3 Functioning of the Burden of Proof 138
Introduction 138
I. The 'Prima Facie Case' or 'Presumption' Approach 140
A. Exploring the meaning of 'prima facie case' 140
B. The uses of a 'prima facie case' in WTO dispute settlement 143
C. Concluding remarks on the meaning of 'prima facie case' 167
II. The 'holistic' or 'weighing of all evidence' approach 167
A. What is the holistic approach? 167
B. The favoured approach for WTO dispute settlement 170
III. The Standard of Proof for WTO Dispute Settlement 172
A. The importance of setting a standard of proof 172
B. Considerations when setting the standard of proof 173
C. Is the prima facie case standard ever optimal? 177
Concluding Remarks 184
4 The Allocation of the Burden of Proof 186
Introduction 186
I. The Current Status of the WTO Rules 187
A. The problem at issue 187
B. The WTO jurisprudence 190
II. Critique of the WTO Jurisprudence 203
A. Have panels and the Appellate Body been consistent? 203
B. Are the criteria relied upon effective? 214
III. What are the Alternatives? 225
A. A look at domestic and international law 225
B. Can law and economics analysis help? 234
C. What are the options for the WTO dispute settlement system? 237
D. India\u2014Additional Import Duties: a paradigm shift? 250
IV. Allocation of the Burden of Proof in Article 21.5 of the DSU Compliance Cases 252
A. 'Regular' Article 21.5 proceedings 253
B. Post-suspension of concessions Article 21.5 proceedings 254
Concluding Remarks 258
Annex: Text of Relevant Provisions from WTO Agreements 260
5 The Main Actors in the Process of Fact-Finding and the Development of the Factual Record 266
Introduction 266
I. The Panel as a Reviewer 268
A. Trade remedies agreements 268
B. SPS and TBT Agreements 274
C. Final considerations 280
II. The Panel as the Original-Trier-of-Facts 281
A. Context: institutional and procedural framework 281
B. The role of the disputing parties 285
C. The role of the panel 339
Concluding Remarks 386
Conclusion 389
The route to optimizing the process of fact-finding 389
Conceptual clarity 390
The prima facie case requirement 390
The standard of proof for WTO dispute settlement 391
Determining that the standard of proof is met 392
Allocation of the burden of proof 393
Burden of pleading 393
Avoiding decisions based on the burden of proof 394
Duty of cooperation 394
The role of the panel in promoting cooperation 395
Alternatives to managing asymmetries of information 396
Confidential information 397
Panel-controlled disclosure 398
Active panel 398
Final considerations and way forward 399
Appendix: Understanding on Rules and Procedures Governing the Settlement of Disputes 400
Bibliography 422
Index 442
A 442
B 442
C 443
D 443
E 443
F 444
G 444
I 444
J 444
M 444
N 444
O 444
P 444
R 445
S 445
T 445
U 445
V 445
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