Burden of Proof, Prima Facie Case and Presumption in WTO Dispute Settlement

Abstract:     
The essay maintains that the WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof - the concepts of prima facie case, presumption, and burden shifting - are disturbingly ambiguous and potentially misleading. This is so whether one thinks of these terms from either a common law or a civil law perspective. In the face of the current ambiguity, a future panel might understand the AB's prima facie case concept to require an overwhelming level of proof from the claimant. On the other hand, a different panel might allow a rather weak level of claimant's proof to meet the prima facie requirement, and then shift the full burden of proof to the respondent. Neither of these results would be justified. An important task of future AB decisions should be to clarify the existing ambiguity and to develop a more conceptually sound use of burden of proof terminology. The essay argues that the AB should abandon its current terminology (prima facie case, presumption, and burden shifting) and should simply state that the complaining Member bears the burden of proof on its basic claim and that this burden - meaning essentially the burden of persuasion - does not shift during the course of the proceeding. The reverse would hold for the responding Member's defenses.

Accepted Paper Series