Burden of Proof in Environmental Disputes in the WTO: Legal Aspects

European Energy and Environmental Law Review, Vol. 18, No. 2, pp. 112-140

85 Pages Posted: 27 May 2009

See all articles by Henrik Horn

Henrik Horn

Research Institute of Industrial Economics (IFN); Centre for Economic Policy Research (CEPR); Bruegel

Petros C. Mavroidis

Columbia University - Law School; European University Institute - Department of Law (LAW); European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS)

Date Written: January 1, 2009

Abstract

This paper discusses allocation of burden of proof in environmental disputes in the WTO system. Besides laying down the natural principles that (i) the complainant carries the burden to (ii) make a prima facie case that its claim holds, WTO adjudicating bodies have said little of more general nature. The paper therefore examines the case law of relevance to environmental policies, to establish the rules concerning burden of proof that are likely to be applied in such disputes. Evaluating this case law, the paper makes two observations,: First, in cases submitted under the GATTWTO, adjudicating bodies have committed errors regarding the required amount of evidence (the burden of persuasion); and second, such errors, as well as errors concerning the determination of the party to carry the burden of providing this evidence (the burden of production), have been committed in disputes submitted under the TBT/SPS Agreements. These errors largely seem attributable to the general absence of methodology regarding the interpretation of some key substantive provisions featuring in the three Agreements.

Keywords: Burden of Proof, Burden of Production, Burden of Persuasion, WTO

JEL Classification: Q56, F13

Suggested Citation

Horn, Henrik and Mavroidis, Petros C., Burden of Proof in Environmental Disputes in the WTO: Legal Aspects (January 1, 2009). European Energy and Environmental Law Review, Vol. 18, No. 2, pp. 112-140. Available at SSRN: https://ssrn.com/abstract=1410614

Henrik Horn (Contact Author)

Research Institute of Industrial Economics (IFN) ( email )

Box 55665
Stockholm, SE-102 15
Sweden

HOME PAGE: http://www.econ-law.se

Centre for Economic Policy Research (CEPR) ( email )

London
United Kingdom

HOME PAGE: http://www.econ-law.se

Bruegel ( email )

Rue de la Charité 33
B-1210 Brussels Belgium
Belgium

Petros C. Mavroidis

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

European University Institute - Department of Law (LAW) ( email )

Via Bolognese 156 (Villa Salviati)
50-139 Firenze
ITALY

European University Institute - Robert Schuman Centre for Advanced Studies (RSCAS) ( email )

Villa La Fonte, via delle Fontanelle 18
50016 San Domenico di Fiesole
Florence, Florence 50014
Italy

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