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REPERTORY OF APPELLATE BODY REPORTS

Burden of Proof


ON THIS PAGE:

EC — Hormones, para. 27
Canada — Pharmaceutical Patents, para. 47
Canada — Pharmaceutical Patents, para. 55
US — 1916 Act, para. 33
US — Offset Act (Byrd Amendment), para. 44
US — Offset Act (Byrd Amendment), para. 66
EC — Tariff Preferences, para. 27
US — Gambling, para. 31
EC — Export Subsidies on Sugar, para. 59
EC — Chicken Cuts, para. 52
Brazil — Retreaded Tyres (Article 21.3(c)), para. 51
Colombia — Ports of Entry (Article 21.3(c)), para. 67


ARB.6.1 EC — Hormones, para. 27     back to top
(WT/DS26/15, WT/DS48/13)

In my view, the party seeking to prove that there are “particular circumstances” justifying a shorter or a longer time has the burden of proof under Article 21.3(c). In this arbitration, therefore, the onus is on the European Communities to demonstrate that there are particular circumstances which call for a reasonable period of time of 39 months, and it is likewise up to the United States and Canada to demonstrate that there are particular circumstances which lead to the conclusion that 10 months is reasonable.

 
ARB.6.2 Canada — Pharmaceutical Patents,
para. 47     back to top
(WT/DS114/13)

… as immediate compliance is clearly the preferred option under Article 21.3, it is, in my view, for the implementing Member to bear the burden of proof in showing — “[i]f it is impracticable to comply immediately” — that the duration of any proposed period of implementation, including its supposed component steps, constitutes a “reasonable period of time”. And the longer the proposed period of implementation, the greater this burden will be.

 
ARB.6.3 Canada — Pharmaceutical Patents,
para. 55     back to top
(WT/DS114/13)

However, certain of the time periods specified by Canada for certain steps toward implementation are not fixed by either law or regulation. Rather, they have been estimated by Canada for purposes of this proceeding. As these estimates are not fixed by either law or regulation, but are only estimates, Canada bears a greater burden of proof in demonstrating their accuracy and legitimacy. And here Canada, in my view, has fallen short.

 
ARB.6.4 US — 1916 Act,
para. 33     back to top
(WT/DS136/11, WT/DS162/14)

The parties do not dispute that “immediate” implementation is “impracticable” in this case. I, therefore, consider that the United States bears the burden of proof in showing that the period of 15 months proposed by it is the “shortest period possible” within its legislative system to implement the recommendations and rulings of the DSB in this particular case. I wish to emphasize that my task as an Arbitrator is to determine the “reasonable period of time” in light of the facts and circumstances of this particular case.

 
ARB.6.5 US — Offset Act (Byrd Amendment),
para. 44     back to top
(WT/DS217/14, WT/DS234/22)

… I also agree with statements by previous arbitrators that it is for the implementing Member to establish that the duration of the implementation period it proposes constitutes the “shortest period possible” within its legal system to implement the recommendations and rulings of the DSB. Where the implementing Member fails to establish that the period of time requested by it is indeed the shortest period possible within its legal system, the arbitrator must determine the “shortest period possible” for implementation, which will be shorter than proposed by the implementing Member, on the basis of the evidence presented by all parties in their submissions, and taking into account the 15-month guideline provided by Article 21.3(c).

 
ARB.6.6 US — Offset Act (Byrd Amendment),
para. 66     back to top
(WT/DS217/14, WT/DS234/22)

I recognize that estimating the duration of the various steps involved in a domestic legislative process is not an exact science. It would be unrealistic to expect an implementing Member to provide, as the basis for its request for a reasonable period of time, a definitive day-by-day schedule of the prospective implementing legislative process. Some of the steps in a legislative process, such as pre-legislative consultations, by their very nature, may prove particularly difficult to estimate. At the same time, however, I fail to see how it would be possible to arrive at a reasoned, and non-speculative, estimate of the total duration of a process without referring, at a minimum, to rough estimates of the time periods required for at least the key component steps of this process. Logically, the total time required for any process must be the sum of the time periods required for each of the component steps of this process. If the request for a total time period of 15 months, as argued by the United States, is based on “logical” and “rigorous” factors, such as the complexity of implementing legislation, or the general experience under the United States’ legislative system, then I believe that such factors would necessarily provide the same relevant, and non-speculative, guidance with respect to at least some of the component steps of the legislative process. Put differently, I do not agree that an estimate of the total duration of the legislative process can be qualified as “logical” and “rigorous” if such an estimate is not based, at least to some extent, on an accumulation of the timeframes for the component steps. Moreover, if any possible estimates of the time periods required under the various component steps of the legislative process would be, as the United States stated at the oral hearing, mere “speculation”, then it appears difficult to see how the total time period of 15 months, requested by the United States, would equally constitute anything other than “speculation”.

 
ARB.6.7 EC — Tariff Preferences,
para. 27     back to top
(WT/DS246/14)

India has argued that the implementing Member — in this case, the European Communities — bears the burden of demonstrating that the period it proposes is reasonable and that “the already great burden becomes even greater” if this period is more than 15 months. In my view, the European Communities must demonstrate that the period it proposes is reasonable; but I do not find it necessary in this arbitration to determine whether the burden of proof becomes greater if the period proposed is more than 15 months. I have found the evidence and arguments presented by both the European Communities and India very helpful in determining whether, in the particular circumstances of this case, the period of time for implementation should be 15 months or a shorter or longer period.

 
ARB.6.8 US — Gambling,
para. 31     back to top
(WT/DS285/13)

Both of the parties to this dispute agree that the United States, as the implementing Member, bears the burden of establishing that its proposed implementation period is a “reasonable period of time”. I do not disagree with the principle that when an implementing Member seeks a reasonable period of time for implementation, then it is appropriate for that Member to carry the burden of demonstrating the reasonableness of its proposal.

 
ARB.6.9 EC — Export Subsidies on Sugar,
para. 59     back to top
(WT/DS265/33, WT/DS266/33, WT/DS283/14)

… I would observe, as have other arbitrators before me, that, in arbitrations conducted pursuant to Article 21.3(c), the implementing Member bears the burden of proof to demonstrate that the period of time it seeks is a reasonable period of time within the meaning of Article 21.3 of the DSU.

 
ARB.6.10 EC — Chicken Cuts,
para. 52     back to top
(WT/DS269/13, WT/DS286/15)

… an implementing Member seeking to go outside its domestic decision-making processes bears the burden of establishing that this external element of its proposed implementation is necessary for, and therefore indispensable to, that Member’s full and effective compliance with its obligations under the covered agreements by implementing the recommendations and rulings of the DSB.

 
ARB.6.11 Brazil — Retreaded Tyres (Article 21.3(c)),
para. 51     back to top
(WT/DS332/16)

… I consider that it is for the Member seeking a reasonable period of time for implementation to establish that the proposed period indeed constitutes the “shortest period possible” within its legal system to implement the recommendations and rulings of the DSB. Failing that, the arbitrator must determine the “shortest period possible” for implementation, which will be “shorter than proposed by the implementing Member, on the basis of the evidence presented by all parties”.

 
ARB.6.12 Colombia — Ports of Entry (Article 21.3(c)),
para. 67     back to top
(WT/DS366/13)

I am guided by previous arbitrators’ awards that place the burden on the implementing Member to demonstrate that, if immediate compliance is impracticable, the period of time it proposes constitutes a “reasonable period of time”. However, this does not absolve the other Member from producing evidence in support of its contention that the period of time requested by the implementing Member is not “reasonable”, and a shorter period of time for implementation is warranted.

 


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