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Evidence, Proof, and Fact-Finding in WTO Dispute Settlement$
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Michelle T. Grando

Print publication date: 2009

Print ISBN-13: 9780199572649

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780199572649.001.0001

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The Allocation of the Burden of Proof

The Allocation of the Burden of Proof

(p.151) 4 The Allocation of the Burden of Proof
Evidence, Proof, and Fact-Finding in WTO Dispute Settlement

Michelle T Grando

Oxford University Press

Taking into account the fact that the question of the allocation of the burden of proof has not been addressed in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU), this chapter is a critical analysis of the rules that panels and the Appellate Body have developed to allocate the burden of proof between the parties. Section I reviews the case law and sets out the questions which will be further discussed in the following sections. Section II argues that panels and the Appellate Body have not adopted a coherent approach and that this has resulted in arbitrary allocations of the burden of proof. Section III then searches for solutions outside the realm of WTO jurisprudence. It explains that domestic law and general principles of law can provide only limited guidance. An alternative analytical framework is then developed on the basis of the law and economics literature on the burden of proof. The last part of the chapter addresses the question of whether the burden of proof should be allocated differently in compliance proceedings under Article 21.5 of the DSU.

Keywords:   WTO, dispute settlement, burden of proof, rules and procedures

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