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B.3.1 General. See also Legislation as
such vs. Specific Application (L.1) back to top
B.3.1.1 US — Wool Shirts and Blouses, p.
14, DSR 1997:I, p. 323 at 335
(WT/DS33/AB/R,
WT/DS33/AB/R/Corr.1)
… we find it difficult,
indeed, to see how any system of judicial settlement could work if it
incorporated the proposition that the mere assertion of a claim might
amount to proof. It is, thus, hardly surprising that various
international tribunals, including the International Court of Justice,
have generally and consistently accepted and applied the rule that the
party who asserts a fact, whether the claimant or the respondent, is
responsible for providing proof thereof. Also, it is a
generally-accepted canon of evidence in civil law, common law and, in
fact, most jurisdictions, that the burden of proof rests upon the party,
whether complaining or defending, who asserts the affirmative of a
particular claim or defence. If that party adduces evidence sufficient
to raise a presumption that what is claimed is true, the burden then
shifts to the other party, who will fail unless it adduces sufficient
evidence to rebut the presumption.
B.3.1.2 US — Wool Shirts and Blouses, p.
16, DSR 1997:I, p. 323 at 337
(WT/DS33/AB/R,
WT/DS33/AB/R/Corr.1)
The transitional safeguard
mechanism provided in Article 6 of the ATC is a fundamental part
of the rights and obligations of WTO Members concerning non-integrated
textile and clothing products covered by the ATC during the
transitional period. Consequently, a party claiming a violation of a
provision of the WTO Agreement by another Member must
assert and prove its claim. …
B.3.1.3 EC — Hormones, para. 98
(WT/DS26/AB/R,
WT/DS48/AB/R)
… The initial burden lies on
the complaining party, which must establish a prima facie case of
inconsistency with a particular provision of the SPS Agreement
on the part of the defending party, or more precisely, of its SPS
measure or measures complained about. When that prima facie case
is made, the burden of proof moves to the defending party, which must in
turn counter or refute the claimed inconsistency. …
B.3.1.4 Japan — Apples, para. 154
(WT/DS245/AB/R)
… the Appellate Body’s
statement in EC — Hormones [Appellate Body Report, para. 98] does not imply that the complaining party is responsible for
providing proof of all facts raised in relation to the issue of
determining whether a measure is consistent with a given provision of a
covered agreement. In other words, although the complaining party bears
the burden of proving its case, the responding party must prove the case
it seeks to make in response. …
B.3.1.5 India — Patents (US), para. 74
(WT/DS50/AB/R)
… it is not sufficient for a
panel to enunciate the correct approach to burden of proof; a panel must
also apply the burden of proof correctly. …
B.3.1.6 Japan — Agricultural Products II,
para. 129
(WT/DS76/AB/R)
Article 13 of the DSU and
Article 11.2 of the SPS Agreement suggest that panels have
a significant investigative authority. However, this authority cannot be
used by a panel to rule in favour of a complaining party which has not
established a prima facie case of inconsistency based on specific
legal claims asserted by it. A panel is entitled to seek information and
advice from experts and from any other relevant source it chooses,
pursuant to Article 13 of the DSU and, in an SPS case, Article 11.2 of
the SPS Agreement, to help it to understand and evaluate
the evidence submitted and the arguments made by the parties, but not to
make the case for a complaining party.
B.3.1.7 Japan — Apples, para. 135 and
footnote 230
(WT/DS245/AB/R)
The Panel determined that it
was “legitimate to consider” the arguments and allegations of fact
regarding apples other than mature, symptomless apples put forward by
Japan in response to the claim pursued by the United States under
Article 2.2. We agree with the Panel. A panel has the authority to make
findings and draw conclusions on arguments and allegations of fact that
are made by the respondent and relevant to a claim pursued by the
complainant. The Panel’s findings and conclusions with respect to
apples other than mature, symptomless apples were in response to the
arguments and allegations of fact that were “legitimately” raised by
Japan. Therefore, when the Panel made findings and drew conclusions on
apples other than mature, symptomless apple fruit, it duly acted within
the limits of its authority.230
B.3.1.8 Canada — Aircraft, para. 167
(WT/DS70/AB/R)
… There is a difference,
however, in what evidence may be employed to prove that a subsidy is
export contingent. De jure export contingency is demonstrated on
the basis of the words of the relevant legislation, regulation or other
legal instrument. Proving de facto export contingency is a much
more difficult task. There is no single legal document which will
demonstrate, on its face, that a subsidy is “contingent … in fact
… upon export performance”. Instead, the existence of this
relationship of contingency, between the subsidy and export performance,
must be inferred from the total configuration of the facts
constituting and surrounding the granting of the subsidy, none of which
on its own is likely to be decisive in any given case.
B.3.1.9 India — Quantitative Restrictions,
para. 137
(WT/DS90/AB/R)
… The Panel thus appears to
have considered that the burden of proof in respect of the Ad Note was
on the United States. This is confirmed by the structure of the Panel’s
analysis in paragraphs 5.202 to 5.215 of its Report, in which the Panel
begins its reasoning by considering the arguments advanced by the United
States. … we do not consider that a panel is required to state expressly
which party bears the burden of proof in respect of every claim made.
B.3.1.10 Thailand
— H-Beams, para. 134
(WT/DS122/AB/R)
Thailand does not suggest that
the Panel erred in its allocation and application of the burden of
proof; it merely argues that the Panel did not make specific and
explicit findings at every stage of its examination of Poland’s claims
under Article 3. In our view, a panel is not required to make a separate
and specific finding, in each and every instance, that a party has met
its burden of proof in respect of a particular claim, or that a party
has rebutted a prima facie case. Thus, the Panel did not err to
the extent that it made no specific findings on whether Poland had met
its burden of proof.
B.3.1.11 EC — Sardines, para. 275
(WT/DS231/AB/R)
Given the conceptual
similarities between, on the one hand, Articles 3.1 and 3.3 of the SPS
Agreement and, on the other hand, Article 2.4 of the TBT Agreement,
we see no reason why the Panel should not have relied on the principle
we articulated in EC — Hormones to determine the allocation of
the burden of proof under Article 2.4 of the TBT Agreement.
In EC — Hormones, we found that a “general
rule-exception” relationship between Articles 3.1 and 3.3 of the SPS
Agreement does not exist, with the consequence that the
complainant had to establish a case of inconsistency with both
Articles 3.1 and 3.3. We reached this conclusion as a consequence of our
finding there that “Article 3.1 of the SPS Agreement
simply excludes from its scope of application the kinds of situations
covered by Article 3.3 of that Agreement”. [Appellate Body Report, EC
— Hormones, para. 104] Similarly, the circumstances envisaged in
the second part of Article 2.4 are excluded from the scope of
application of the first part of Article 2.4. Accordingly, as with
Articles 3.1 and 3.3 of the SPS Agreement, there is no “general
rule-exception” relationship between the first and the second parts of
Article 2.4. Hence, in this case, it is for Peru — as the complaining
Member seeking a ruling on the inconsistency with Article 2.4 of the TBT
Agreement of the measure applied by the European Communities — to
bear the burden of proving its claim. This burden includes establishing
that Codex Stan 94 has not been used “as a basis for” the EC
Regulation, as well as establishing that Codex Stan 94 is effective and
appropriate to fulfil the “legitimate objectives” pursued by the
European Communities through the EC Regulation.
B.3.1.12 EC — Sardines, para. 281
(WT/DS231/AB/R)
… There is nothing in the
WTO dispute settlement system to support the notion that the allocation
of the burden of proof should be decided on the basis of a comparison
between the respective difficulties that may possibly be encountered by
the complainant and the respondent in collecting information to prove a
case.
B.3.1.13 US — Carbon Steel, paras. 156-157
(WT/DS231/AB/R,
WT/DS213/AB/R/Corr.1)
… in dispute settlement
proceedings, Members may challenge the consistency with the covered
agreements of another Member’s laws, as such, as distinguished from
any specific application of those laws. In both cases, the complaining
Member bears the burden of proving its claim. …
Thus, a responding Member’s
law will be treated as WTO-consistent until proven otherwise. The
party asserting that another party’s municipal law, as such, is
inconsistent with relevant treaty obligations bears the burden of
introducing evidence as to the scope and meaning of such law to
substantiate that assertion. Such evidence will typically be produced in
the form of the text of the relevant legislation or legal instruments,
which may be supported, as appropriate, by evidence of the consistent
application of such laws, the pronouncements of domestic courts on the
meaning of such laws, the opinions of legal experts and the writings of
recognized scholars. The nature and extent of the evidence required to
satisfy the burden of proof will vary from case to case.
B.3.1.14 Canada — Dairy (Article 21.5
— New
Zealand and US II), para. 66
(WT/DS103/AB/RW2,
WT/DS113/AB/RW2)
… we have consistently held
that, as a general matter, the burden of proof rests upon the
complaining Member. That Member must make out a prima facie case
by presenting sufficient evidence to raise a presumption in favour of
its claim. If the complaining Member succeeds, the responding Member may
then seek to rebut this presumption. Therefore, under the usual
allocation of the burden of proof, a responding Member’s measure will
be treated as WTO-consistent, until sufficient evidence is
presented to prove the contrary. We will not readily find that the usual
rules on burden of proof do not apply, as they reflect a “canon of
evidence” accepted and applied in international proceedings.
B.3.1.15 EC — Tariff Preferences, para. 98
(WT/DS246/AB/R)
… The status and relative
importance of a given provision does not depend on whether it is
characterized, for the purpose of allocating the burden of proof, as a
claim to be proven by the complaining party, or as a defence to be
established by the responding party. Whatever its characterization, a
provision of the covered agreements must be interpreted in accordance
with the “customary rules of interpretation of public international
law”, as required by Article 3.2 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (the “DSU”). …
B.3.1.16 Canada — Wheat Exports and Grain
Imports, para. 191
(WT/DS276/AB/R)
In our view, it is incumbent
upon a party to identify in its submissions the relevance of the
provisions of legislation — the evidence — on which it relies to support
its arguments. It is not sufficient merely to file an entire piece of
legislation and expect a panel to discover, on its own, what relevance
the various provisions may or may not have for a party’s legal
position. We are not satisfied that the United States argued the
relevance before the Panel of the various provisions of the Canadian
Wheat Board Act on which it now relies. … Therefore, we do not
agree with the United States that the Panel disregarded facts relevant
to the independence of the CWB and we see no failure by the Panel in
this respect to comply with its duty under Article 11 of the DSU.
B.3.1.17 US — Upland Cotton, para. 747
(WT/DS267/AB/R)
In this case, Brazil’s claim
on appeal is limited to the Panel’s application of the burden of
proof. Brazil has expressly stated that it is not requesting us to
complete the analysis. In view of Brazil’s request, our ruling would
not result in recommendations or rulings by the DSB in respect of the
ETI Act of 2000. In these circumstances, we fail to see how our
examination of Brazil’s claim would contribute to the “prompt” or
“satisfactory settlement” of this matter or would contribute to “secure
a positive solution” to this dispute. Even if we were to disagree with
the manner in which the Panel applied the burden of proof, we would not
make any findings in respect of the WTO-consistency of the ETI Act of
2000. We recognize that there may be cases in which it would be useful
for us to make a finding on an issue, despite the fact that our decision
would not result in rulings and recommendations by the DSB. In this
case, however, we find no compelling reason for doing so on this
particular issue.
B.3.2 Presumption — prima facie case back to top
B.3.2.1 US — Wool Shirts and Blouses, p.
14, DSR 1997:I, p. 323 at 335
(WT/DS33/AB/R,
WT/DS33/AB/R/Corr.1)
… precisely how much and
precisely what kind of evidence will be required to establish such a
presumption will necessarily vary from measure to measure, provision to
provision, and case to case.
B.3.2.2 EC — Hormones, para. 104
(WT/DS26/AB/R,
WT/DS48/AB/R)
… It is also well to
remember that a prima facie case is one which, in the absence of
effective refutation by the defending party, requires a panel, as a
matter of law, to rule in favour of the complaining party presenting the
prima facie case.
B.3.2.3 Japan — Agricultural Products II,
para. 129
(WT/DS76/AB/R)
Article 13 of the DSU and
Article 11.2 of the SPS Agreement suggest that panels have
a significant investigative authority. However, this authority cannot be
used by a panel to rule in favour of a complaining party which has not
established a prima facie case of inconsistency based on specific
legal claims asserted by it. A panel is entitled to seek information and
advice from experts and from any other relevant source it chooses,
pursuant to Article 13 of the DSU and, in an SPS case, Article 11.2 of
the SPS Agreement, to help it to understand and evaluate
the evidence submitted and the arguments made by the parties, but not to
make the case for a complaining party.
B.3.2.4 Canada — Aircraft, para. 192
(WT/DS70/AB/R)
… A prima facie case,
it is well to remember, is a case which, in the absence of effective
refutation by the defending party (that is, in the present appeal, the
Member requested to provide the information), requires a panel, as a
matter of law, to rule in favour of the complaining party presenting the
prima facie case. … a panel is vested with ample and extensive
discretionary authority to determine when it needs information to
resolve a dispute and what information it needs. A panel may need
such information before or after a complaining or a responding Member
has established its complaint or defence on a prima facie basis.
A panel may, in fact, need the information sought in order to evaluate
evidence already before it in the course of determining whether the
claiming or the responding Member, as the case may be, has established a
prima facie case or defence. Furthermore, a refusal to provide
information requested on the basis that a prima facie case has
not been made implies that the Member concerned believes that it is able
to judge for itself whether the other party has made a prima facie
case. However, no Member is free to determine for itself whether a prima
facie case or defence has been established by the other party. That
competence is necessarily vested in the panel under the DSU, and not in
the Members that are parties to the dispute. …
B.3.2.5 India — Quantitative Restrictions,
para. 142
(WT/DS90/AB/R)
We do not interpret the above
statement as requiring a panel to conclude that a prima facie
case is made before it considers the views of the IMF or any other
experts that it consults. Such consideration may be useful in order to
determine whether a prima facie case has been made. Moreover, we
do not find it objectionable that the Panel took into account, in
assessing whether the United States had made a prima facie case,
the responses of India to the arguments of the United States. This way
of proceeding does not imply, in our view, that the Panel shifted the
burden of proof to India. We, therefore, are not of the opinion that the
Panel erred in law in proceeding as it did.
B.3.2.6 Korea — Dairy, para. 145
(WT/DS98/AB/R)
We find no provision in the
DSU or in the Agreement on Safeguards that requires a panel to
make an explicit ruling on whether the complainant has established a prima
facie case of violation before a panel may proceed to examine the
respondent’s defence and evidence. …
B.3.2.7 US — Certain EC Products, para. 114
(WT/DS165/AB/R)
… As the European
Communities did not make a specific claim of inconsistency with Article 23.2(a), it did not adduce any evidence or arguments to demonstrate that
the United States made a “determination as to the effect that a
violation has occurred” in breach of Article 23.2(a) of the DSU. And,
as the European Communities did not adduce any evidence or arguments in
support of a claim of violation of Article 23.2(a) of the DSU, the
European Communities could not have established, and did not establish,
a prima facie case of violation of Article 23.2(a) of the DSU.
B.3.2.8 Japan — Apples, para. 157
(WT/DS245/AB/R)
It is important to
distinguish, on the one hand, the principle that the complainant must
establish a prima facie case of inconsistency with a provision of
a covered agreement from, on the other hand, the principle that the
party that asserts a fact is responsible for providing proof thereof. In
fact, the two principles are distinct. In the present case, the burden
of demonstrating a prima facie case that Japan’s measure is
maintained without sufficient scientific evidence, rested on the United
States. Japan sought to counter the case put forward by the United
States by putting arguments in respect of apples other than mature,
symptomless apples being exported to Japan as a result of errors of
handling or illegal actions. It was thus for Japan to substantiate those
allegations; it was not for the United States to provide proof of the
facts asserted by Japan. …
B.3.2.9 Japan — Apples, para. 159
(WT/DS245/AB/R)
Japan also submits that, “in
order to establish a prima facie case of insufficient scientific
evidence under Article 2.2 of the SPS Agreement, the complaining party
must establish that there is not sufficient scientific evidence for any
of the perceived risks underlying the measure”. According to Japan,
the Panel should not have concluded that this prima facie case
had been established unless the United States had first addressed all
the possible hypotheses — including those for which the likelihood of
occurrence is low or rests upon theoretical reasonings — and had shown
for each of them that the risk of transmission of fire blight is
negligible. We find no basis for the approach advocated by Japan. As the
Appellate Body stated in EC — Hormones [Appellate Body
Report, para. 104], “a prima facie case is one which, in the
absence of effective refutation by the defending party, requires a
panel, as a matter of law, to rule in favour of the complaining party
presenting the prima facie case.” In US — Wool Shirts and
Blouses [Appellate Body Report, p. 14, DSR1997:I, p. 323 at 335],
the Appellate Body stated that the nature and scope of evidence required
to establish a prima facie case “will necessarily vary from
measure to measure, provision to provision, and case to case.” In the
present case, the Panel appears to have concluded that in order to
demonstrate a prima facie case that Japan’s measure is
maintained without sufficient scientific evidence, it sufficed for the
United States to address only the question of whether mature,
symptomless apples could serve as a pathway for fire blight.
B.3.2.10 Japan — Apples, para. 160
(WT/DS245/AB/R)
The Panel’s conclusion seems
appropriate to us for the following reasons. First, the claim pursued by
the United States was that Japan’s measure is maintained without
sufficient scientific evidence to the extent that it applies to mature,
symptomless apples exported from the United States to Japan. What is
required to demonstrate a prima facie case is necessarily
influenced by the nature and the scope of the claim pursued by the
complainant. A complainant should not be required to prove a claim it
does not seek to make. Secondly, the Panel found that mature,
symptomless apple fruit is the commodity “normally exported” by the
United States to Japan. The Panel indicated that the risk that apple
fruit other than mature, symptomless apples may actually be imported
into Japan would seem to arise primarily as a result of human or
technical error, or illegal actions, and noted that the experts
characterized errors of handling and illegal actions as “small” or
“debatable” risks. Given the characterization of these risks, in our
opinion it was legitimate for the Panel to consider that the United
States could demonstrate a prima facie case of inconsistency with
Article 2.2 of the SPS Agreement through argument based
solely on mature, symptomless apples. Thirdly, the record contains no
evidence to suggest that apples other than mature, symptomless ones have
ever been exported to Japan from the United States as a result of errors
of handling or illegal actions. Thus, we find no error in the Panel’s
approach that the United States could establish a prima facie
case of inconsistency with Article 2.2 of the SPS Agreement
in relation to apples exported from the United States to Japan, even
though the United States confined its arguments to mature, symptomless
apples.
B.3.2.11 Japan — Apples, para. 215
(WT/DS245/AB/R)
As Japan failed to establish
that the Panel utilized subsequent scientific evidence in evaluating the
risk assessment at issue, it is not necessary for us to express views on
the question whether the conformity of a risk assessment with Article 5.1 should be evaluated solely against the scientific evidence available
at the time of the risk assessment, to the exclusion of subsequent
information. Resolution of such hypothetical claims would not serve “to
secure a positive solution” to this dispute.
B.3.2.12 US — Oil Country Tubular Goods Sunset
Reviews, para. 263
(WT/DS268/AB/R)
… As the Appellate Body
indicated in US — Carbon Steel, the obligation to make out a prima
facie case may be satisfied in certain cases simply by submitting
the text of the measure or, particularly where the text may be unclear,
with supporting materials. …
B.3.2.13 US — Gambling, paras. 138-140
(WT/DS285/AB/R)
The complaining party bears
the burden of proving an inconsistency with specific provisions of the
covered agreements. …
Where the complaining party
has established its prima facie case, it is then for the
responding party to rebut it. A panel errs when it rules on a claim for
which the complaining party has failed to make a prima facie
case.
A prima facie case must
be based on “evidence and legal argument” put forward by the
complaining party in relation to each of the elements of the
claim. A complaining party may not simply submit evidence and expect the
panel to divine from it a claim of WTO-inconsistency. Nor may a
complaining party simply allege facts without relating them to its legal
arguments.
B.3.2.14 US — Gambling, para. 141
(WT/DS285/AB/R)
… Given that … a
requirement [to plainly connect the challenged measure(s) with the
provision(s) of the covered agreements claimed to have been infringed,
so that the respondent party is aware of the basis for the alleged
nullification or impairment of the complaining party’s benefits]
applies to panel requests at the outset of a panel proceeding, we are of
the view that a prima facie case — made in the course of
submissions to the panel — demands no less of the complaining party. The
evidence and arguments underlying a prima facie case, therefore,
must be sufficient to identify the challenged measure and its basic
import, identify the relevant WTO provision and obligation contained
therein, and explain the basis for the claimed inconsistency of the
measure with that provision.
B.3.2.15 US — Gambling, paras. 143-144
(WT/DS285/AB/R)
… Antigua was required to
make its prima facie case by first alleging that the United
States had undertaken a market access commitment in its GATS Schedule;
and, secondly, by identifying, with supporting evidence, how the
challenged laws constitute impermissible “limitations” falling
within Article XVI:2(a) or XVI:2(c).
… Antigua was required to
make its prima facie case with respect to specific federal
and state laws identified in its panel request.
B.3.2.16 US — Gambling, para. 149
(WT/DS285/AB/R)
As to the eight state laws
reviewed by the Panel, we note that Antigua made no mention of them in
the course of its argument that the United States acts inconsistently
with Article XVI of the GATS. In none of Antigua’s submissions to the
Panel was the way in which these measures operate explained in a manner
that would have made it apparent to the Panel and to the United States
that an inconsistency with Article XVI was being alleged with respect to
these measures. Thus, we see no basis on which we can conclude that
Antigua sufficiently connected the eight state laws with Article XVI and
thereby established a prima facie case of inconsistency with that
provision.
B.3.2.17 US — Gambling, paras. 153, 155
(WT/DS285/AB/R)
… with respect to the state
laws … Antigua failed to identify how these laws operated and
how they were relevant to its claim of inconsistency with Article XVI:2.
…
… the Panel erred in ruling
on claims relating to these state laws, where no prima facie case
of inconsistency had been made out by Antigua …
B.3.3 Defences and Exceptions. See also
Request for the Establishment of a Panel, Article 6.2 of the DSU — Claims and legal basis of the complaint
(R.2.2); SCM Agreement, Article 27 — Special and differential treatment for developing country Members
(S.2.35); SPS Agreement, Article 3.2 — “measures which conform to
international standards” (S.6.7) back to top
B.3.3.1 US — Gasoline, pp. 22-23, DSR
1996:I, p. 3 at 21
(WT/DS2/AB/R)
The burden of demonstrating
that a measure provisionally justified as being within one of the
exceptions set out in the individual paragraphs of Article XX does not,
in its application, constitute abuse of such exception under the
chapeau, rests on the party invoking the exception. …
B.3.3.2 US — Wool Shirts and Blouses, pp.
15-16, DSR 1997:I, p. 323 at 337
(WT/DS33/AB/R,
WT/DS33/AB/R/Corr.1)
… We acknowledge that
several GATT 1947 and WTO panels have required such proof of a party
invoking a defence, such as those found in Article XX or Article XI:2(c)(i), to a claim of violation of a GATT obligation, such as those
found in Articles I:1, II:1, III or XI:1. Articles XX and XI:(2)(c)(i)
are limited exceptions from obligations under certain other provisions
of the GATT 1994, not positive rules establishing obligations in
themselves. They are in the nature of affirmative defences. It is only
reasonable that the burden of establishing such a defence should rest on
the party asserting it.
B.3.3.3 EC — Hormones, para. 104
(WT/DS26/AB/R,
WT/DS48/AB/R)
… The general rule in a
dispute settlement proceeding requiring a complaining party to establish
a prima facie case of inconsistency with a provision of the SPS
Agreement before the burden of showing consistency with that
provision is taken on by the defending party, is not avoided by
simply describing [Article 3.3] as an “exception”. …
B.3.3.4 Brazil — Aircraft, paras. 140-141
(WT/DS46/AB/R)
… On reading paragraphs 2(b)
and 4 of Article 27 together, it is clear that the conditions set forth
in paragraph 4 are positive obligations for developing country
Members, not affirmative defences. If a developing country Member
complies with the obligations in Article 27.4, the prohibition on export
subsidies in Article 3.1(a) simply does not apply. However, if that
developing country Member does not comply with those obligations,
Article 3.1(a) does apply.
For these reasons, we agree
with the Panel that the burden is on the complaining party … to
demonstrate that the developing country Member … is not in compliance
with at least one of the elements set forth in Article 27.4. …
B.3.3.5 India — Quantitative Restrictions,
para. 136
(WT/DS90/AB/R)
… Assuming that the
complaining party has successfully established a prima facie case
of inconsistency with Article XVIII:11 and the Ad Note, the responding
party may, in its defence, either rebut the evidence adduced in support
of the inconsistency or invoke the proviso. In the latter case, it would
have to demonstrate that the complaining party violated its obligation
not to require the responding party to change its development policy.
This is an assertion with respect to which the responding party must
bear the burden of proof. …
B.3.3.6 Brazil — Aircraft (Article 21.5
— Canada), para. 66
(WT/DS46/AB/RW)
… In our view, the fact that
the measure at issue was “taken to comply” with the “recommendations
and rulings” of the DSB does not alter the allocation of the burden of
proving Brazil’s “defence” under item (k). In this respect, we
note that Brazil concedes that the revised PROEX measure is, in
principle, prohibited under Article 3.1(a) of the SCM Agreement;
yet Brazil asserts nonetheless that the PROEX measure is justified,
under the first paragraph of item (k). Thus, in our view, Brazil is,
clearly, using item (k) to make an affirmative claim in its defence. In United
States — Measure Affecting Imports of Woven Wool Shirts and
Blouses from India, we said: “It is only reasonable that the
burden of establishing [an affirmative] defence should rest on the party
asserting it.” As it is Brazil that is asserting this “defence”
using item (k) in these proceedings, we agree with the Article 21.5
Panel that Brazil has the burden of proving that the revised PROEX is
justified under the first paragraph of item (k), including the burden of
proving that payments under the revised PROEX are not “used to
secure a material advantage in the field of export credit terms.”
B.3.3.7 US — FSC (Article 21.5
— EC),
para. 133
(WT/DS108/AB/RW)
Accordingly, as we indicated
in US — FSC, the fifth sentence of footnote 59 constitutes
an affirmative defence that justifies a prohibited export subsidy when
the measure in question is taken “to avoid the double taxation of
foreign-source income”. In such a situation, the burden of proving
that a measure is justified by falling within the scope of the fifth
sentence of footnote 59 rests upon the responding party.
B.3.3.8 EC — Tariff Preferences, para. 88
(WT/DS246/AB/R)
… In cases where one
provision permits, in certain circumstances, behaviour that would
otherwise be inconsistent with an obligation in another provision, and
one of the two provisions refers to the other provision, the Appellate
Body has found that the complaining party bears the burden of
establishing that a challenged measure is inconsistent with the
provision permitting particular behaviour only where one of the
provisions suggests that the obligation is not applicable to the said
measure. Otherwise, the permissive provision has been characterized as
an exception, or defence, and the onus of invoking it and proving the
consistency of the measure with its requirements has been placed on the
responding party. However, this distinction may not always be evident or
readily applicable.
B.3.3.9 EC — Tariff Preferences, para. 90
(WT/DS246/AB/R)
… By using the word “notwithstanding”,
paragraph 1 of the Enabling Clause permits Members to provide “differential
and more favourable treatment” to developing countries “in spite of”
the MFN obligation of Article I:1. Such treatment would otherwise be
inconsistent with Article I:1 because that treatment is not extended to
all Members of the WTO “immediately and unconditionally”. Paragraph
1 thus excepts Members from complying with the obligation contained in
Article I:1 for the purpose of providing differential and more
favourable treatment to developing countries, provided that such
treatment is in accordance with the conditions set out in the Enabling
Clause. As such, the Enabling Clause operates as an “exception” to
Article I:1.
B.3.3.10 EC — Tariff Preferences, para. 97
(WT/DS246/AB/R)
We do not consider it
relevant, for the purposes of determining whether a provision is or is
not in the nature of an exception, that the provision governs “trade
measures” rather than measures of a primarily “non-trade” nature.
…
B.3.3.11 EC — Tariff Preferences,
para. 98
(WT/DS246/AB/R)
… The status and relative
importance of a given provision does not depend on whether it is
characterized, for the purpose of allocating the burden of proof, as a
claim to be proven by the complaining party, or as a defence to be
established by the responding party. Whatever its characterization, a
provision of the covered agreements must be interpreted in accordance
with the “customary rules of interpretation of public international
law”, as required by Article 3.2 of the Understanding on Rules and
Procedures Governing the Settlement of Disputes (the “DSU”). …
B.3.3.12 EC — Tariff Preferences,
paras. 104-105
(WT/DS246/AB/R)
… it is normally for the
respondent, first, to raise the defence and, second, to prove
that the challenged measure meets the requirements of the defence
provision.
We are therefore of the view
that the European Communities must prove that the Drug
Arrangements satisfy the conditions set out in the Enabling Clause.
Consistent with the principle of jura novit curia, it is not the
responsibility of the European Communities to provide us with the legal
interpretation to be given to a particular provision in the Enabling
Clause; instead, the burden of the European Communities is to adduce
sufficient evidence to substantiate its assertion that the Drug
Arrangements comply with the requirements of the Enabling Clause.
B.3.3.13 EC — Tariff Preferences, para. 110
(WT/DS246/AB/R)
… we are of the view that a
complaining party challenging a measure taken pursuant to the Enabling
Clause must allege more than mere inconsistency with Article I:1 of the
GATT 1994, for to do only that would not convey the “legal basis of
the complaint sufficient to present the problem clearly”. In other
words, it is insufficient in WTO dispute settlement for a complainant to
allege inconsistency with Article I:1 of the GATT 1994 if the
complainant seeks also to argue that the measure is not justified under
the Enabling Clause. …
B.3.3.14 EC — Tariff Preferences, para. 118
(WT/DS246/AB/R)
… In the light of the above
considerations, we are of the view that India was required to (i)
identify, in its request for the establishment of a panel, which
obligations in the Enabling Clause the Drug Arrangements are alleged to
have contravened, and (ii) make written submissions in support of this
allegation. The requirement to make such an argument, however, does not
mean that India must prove inconsistency with a provision of the
Enabling Clause, because the ultimate burden of establishing the
consistency of the Drug Arrangements with the Enabling Clause lies with
the European Communities.
B.3.3.15 US — Gambling, paras. 270-272
(WT/DS285/AB/R)
At the same time, the
opportunity afforded to a Member to respond to claims and defences made
against it is also a “fundamental tenet of due process”. A party
must not merely be given an opportunity to respond, but that
opportunity must be meaningful in terms of that party’s ability to
defend itself adequately. A party that considers it was not afforded
such an opportunity will often raise a due process objection before the
panel. The Appellate Body has recognized in numerous cases that a Member’s
right to raise a claim or objection, as well as a panel’s exercise of
discretion, are circumscribed by the due process rights of other parties
to a dispute. Those due process rights similarly serve to limit a
responding party’s right to set out its defence at any point
during the panel proceedings.
Due process may be of
particular concern in cases where a party raises new facts at a
late stage of the panel proceedings. The Appellate Body has observed
that, under the standard working procedures of panels, complaining
parties should put forward their cases — with “a full presentation of
the facts on the basis of submission of supporting evidence” — during
the first stage of panel proceedings. We see no reason why this
expectation would not apply equally to responding parties, which, once
they have received the first written submission of a complaining party,
are likely to be aware of the defences they might invoke and the
evidence needed to support them.
It follows that the principles
of good faith and due process oblige a responding party to articulate
its defence promptly and clearly. This will enable the complaining party
to understand that a specific defence has been made, “be aware of its
dimensions, and have an adequate opportunity to address and respond to
it.”…
B.3.3.16 US — Gambling, para. 282
(WT/DS285/AB/R)
In the context of affirmative
defences, then, a responding party must invoke a defence and put forward
evidence and arguments in support of its assertion that the challenged
measure satisfies the requirements of the defence. When a responding
party fulfils this obligation, a panel may rule on whether the
challenged measure is justified under the relevant defence, relying on
arguments advanced by the parties or developing its own reasoning. The
same applies to rebuttals. A panel may not take upon itself to rebut the
claim (or defence) where the responding party (or complaining party)
itself has not done so.
B.3.3.17 US — Gambling, paras. 309-310
(WT/DS285/AB/R)
It is well-established that a
responding party invoking an affirmative defence bears the burden of
demonstrating that its measure, found to be WTO-inconsistent, satisfies
the requirements of the invoked defence. In the context of Article XIV(a),
this means that the responding party must show that its measure is “necessary”
to achieve objectives relating to public morals or public order. In our
view, however, it is not the responding party’s burden to show, in the
first instance, that there are no reasonably available
alternatives to achieve its objectives. In particular, a responding
party need not identify the universe of less trade-restrictive
alternative measures and then show that none of those measures achieves
the desired objective. The WTO agreements do not contemplate such an
impracticable and, indeed, often impossible burden.
Rather, it is for a responding
party to make a prima facie case that its measure is “necessary”
by putting forward evidence and arguments that enable a panel to assess
the challenged measure in the light of the relevant factors to be “weighed
and balanced” in a given case. The responding party may, in so doing,
point out why alternative measures would not achieve the same objectives
as the challenged measure, but it is under no obligation to do so in
order to establish, in the first instance, that its measure is “necessary”.
If the panel concludes that the respondent has made a prima facie
case that the challenged measure is “necessary” — that is, “significantly
closer to the pole of ‘indispensable’ than to the opposite pole of
simply ‘making a contribution to’ “ — then a panel should find
that challenged measure “necessary” within the terms of Article XIV(a) of the GATS.
B.3.3.18 US — Gambling, para. 311
(WT/DS285/AB/R)
If, however, the complaining
party raises a WTO-consistent alternative measure that, in its view, the
responding party should have taken, the responding party will be
required to demonstrate why its challenged measure nevertheless remains
“necessary” in the light of that alternative or, in other words, why
the proposed alternative is not, in fact, “reasonably available”. If
a responding party demonstrates that the alternative is not “reasonably
available”, in the light of the interests or values being pursued and
the party’s desired level of protection, it follows that the
challenged measure must be “necessary” within the terms of Article XIV(a) of the GATS.
B.3.3.19 US — Gambling, para. 323
(WT/DS285/AB/R)
… a responding party must
make a prima facie case that its challenged measure is “necessary”.
A Panel determines whether this case is made through the identification,
and weighing and balancing, of relevant factors, such as those in Korea
— Various Measures on Beef, with respect to the measure challenged.
…
B.3.4 Reversal of Burden of Proof. See also
Agreement on Agriculture, Article 10.3 — Reversal of Burden of Proof (A.1.34) back to top
B.3.4.1 Canada — Dairy (Article 21.5
— New
Zealand and US), para. 98
(WT/DS103/AB/RW,
WT/DS113/AB/RW)
As we have reversed the Panel’s
findings regarding the standard for determining the existence of “payments”
and have, instead, identified the appropriate standard for these
proceedings, namely, the average total cost of production, we now
consider whether we can resolve this aspect of the dispute by completing
the analysis. The Panel found that, in these proceedings, Article 10.3
of the Agreement on Agriculture reverses the burden of proof so
that Canada must establish “that no export subsidy … has been
granted”. Although the burden of proof is on Canada, we must
nonetheless complete the analysis solely on the basis of factual
findings made by the Panel and uncontested facts in the Panel record.
B.3.4.2 Canada — Dairy (Article 21.5
— New
Zealand and US II), para. 71
(WT/DS103/AB/RW2,
WT/DS113/AB/RW2)
Under the usual rules on
burden of proof, the complaining Member would bear the burden of proving
both parts of the claim. However, Article 10.3 of the Agreement on
Agriculture partially alters the usual rules. The provision cleaves
the complaining Member’s claim in two, allocating to different parties
the burden of proof with respect to the two parts of the claim we have
described.
B.3.4.3 US — Upland Cotton, paras. 647-648
(WT/DS267/AB/R)
We agree with the United
States that Article 10.3 of the Agreement on Agriculture does not
apply to claims brought under the SCM Agreement. However, the
Panel did not make the error attributed to it by the United States. The
Panel made the statement relied on by the United States in the context
of its assessment of the United States’ export credit guarantee
program under the Agreement on Agriculture. Although the Panel
made use of the criteria set out in item (j) of the Illustrative List of
Export Subsidies annexed to the SCM Agreement (providing these
programs at premium rates inadequate to cover long-term operating costs
and losses) it did so as contextual guidance for its analysis under the Agreement
on Agriculture, and both the United States and Brazil appear to have
agreed with the appropriateness of this approach. Thus, the Panel’s
reference to Article 10.3 did not relate to its assessment of the United
States’ export credit guarantee programs under the SCM Agreement.
… It is clear from this
paragraph that the Panel placed the burden of proof on Brazil and
determined that Brazil met its burden of proving that the United States’
export credit guarantees are provided at premium rates that are
inadequate to cover long-term operating costs and losses. … The
reference to Article 10.3 does not, by itself, change the fact that the
Panel ultimately placed the burden of proof on Brazil.
B.3.4.4 US — Upland Cotton,
para. 652
(WT/DS267/AB/R)
We disagree with the Panel’s
view that Article 10.3 applies to unscheduled products. Under the
Panel’s approach, the only thing a complainant would have to do to
meet its burden of proof when bringing a claim against an unscheduled
product is to demonstrate that the respondent has exported that product.
Once that has been established, the respondent would have to demonstrate
that it has not provided an export subsidy. This seems to us an extreme
result. In effect, it would mean that any export of an unscheduled
product is presumed to be subsidized. In our view, the
presumption of subsidization when exported quantities exceed the
reduction commitments makes sense in respect of a scheduled
product because, by including it in its schedule, a WTO Member is
reserving for itself the right to apply export subsidies to that
product, within the limits in its schedule. In the case of unscheduled
products, however, such a presumption appears inappropriate. Export
subsidies for both unscheduled agricultural products and industrial
products are completely prohibited under the Agreement on Agriculture
and under the SCM Agreement, respectively. The Panel’s
interpretation implies that the burden of proof with regard to the same
issue would apply differently, however, under each Agreement: it would
be on the respondent under the Agreement on Agriculture, while it
would be on the complainant under the SCM Agreement.
B.3.4.5 US — Upland Cotton, para. 656
(WT/DS267/AB/R)
In our view, none of these
statements demonstrates that the Panel improperly applied the rules on
burden of proof. The United States is selecting statements made by the
Panel within its broader analysis of how the United States’ export
credit guarantee programs operate, reading them in isolation, and
disregarding the context in which they were made. As indicated earlier,
it is clear that the Panel imposed on Brazil the overall burden of
proving that the premiums charged under the United States’ export
credit guarantee programs are inadequate to cover long-term operating
costs and losses. This approach is consistent with the usual rules on
the allocation of the burden of proof whereby the complaining party is
responsible for proving its claim. …
230. In support of
the argument that the Panel had no authority to make findings and draw
conclusions with respect to immature apples, the United States relies on
the finding of the Appellate Body in Japan — Agricultural Products
II that a panel should not use its investigative authority “to
rule in favour of a complaining party which has not established a
prima facie case of inconsistency based on specific legal claims
asserted by it.” (Appellate Body Report, para. 129) The United
States’ reliance on Japan — Agricultural Products II is
misplaced, for the facts and circumstances that led to the Appellate
Body’s finding are not the same as those present here. In Japan —
Agricultural Products II, the Appellate Body found fault with the
panel’s reliance on expert evidence to rule in favour of the
complainant in the absence of a case established by the complainant
itself. The circumstances in the present case differ from those present
in Japan — Agricultural Products II. Indeed, in the present
case, the Panel made findings and drew conclusions on apples other than
mature, symptomless apples in response to Japan’s case.
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