Chapter VI
General Rules of Evidence
under the WTO Jurisprudence


OUTLINE

I Burden of Proof under the WTO Jurisprudence
(ⅰ) General Rules Well Established in Violation Complaints
(ⅱ) Burden of Proof in case of Invoking an Exception
(ⅲ) Special Rules Concerning Non-Violation Claims
(ⅳ) Summary and Conclusions
II Admissibility of Certain Evidences
(ⅰ) Evidence Obtained from Prior Consultations
(a) Procedural Concern: Confidentiality of Consultations
(b) Substantial Concern: Necessity or Relevance of Evidence
(ⅱ) Arguments before Domestic Investigative Authorities
(ⅲ) Arguments Submitted after the First Substantive Meeting
(a) There is a significant difference between the claims and the arguments supporting those claims.
(b)There is no provision establishing precise deadlines for the presentation of evidence.
III Panel’s Right to Seek Information
(ⅰ) A Grant of Discretionary Authority
(ⅱ) The Admissibility of Non-requested Information
(ⅲ) Summary and Conclusions
IV Adverse Inferences from Party’s Refusal to Provide Information Requested
(ⅰ) The Authority of a Panel to Request Information from a Party to the Dispute
(ⅱ) The Duty of a Member to Comply with the Request of a Panel to Provide Information
(ⅲ) The Drawing of Adverse Inferences from the Refusal of a Party to Provide Information Requested by the Panel
V Concluding Remarks

I Burden of Proof under the WTO Jurisprudence
Generally, the question of whether a member acted in accordance with the agreement hinges frequently on whether and to what extent that member must demonstrate compliance or the complaint must demonstrate a lack of compliance. It is demonstrated that the burden of proof is a procedural concept which speaks to the fair and orderly management and disposition of a dispute. This is the issue of “the ultimate burden of proof for establishing a claim or a defence”. In this respect, the Panel Report on US-Copyright Act (DS160) states, “[w]hile a duty rests on all parties to produce evidence and to cooperate in presenting evidence to the Panel, this is an issue that has to be distinguished from the question of who bears the ultimate burden of proof for establishing a claim or a defence”.1
(i) General Rules Well Established in Violation Complaints
Art. 3.8 of the DSU provides that in cases where there is an infringement of the obligations assumed under a covered agreement -- that is, in cases where a violation is established -- there is a presumption of nullification or impairment. However, the issue of burden of proof here is not what happens after a violation is established; the issue is which party must first show that there is, or is not, a violation. In this respect, a number of GATT 1947 panel reports contain language supporting the proposition that the burden of establishing a violation under Article XXIII:1(a) of the GATT 1947 was on the complaining party, i.e., it was for the complaining party to present a prima facie case of violation before a panel. This rule is taken on by the DSB.
With regard to the issue of burden of proof, the Appellate Body in US-Shirts and Blouses (DS33) rules that: “In addressing this issue, 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.” 2And this ruling is demonstrated to be well established in subsequent cases as a general rule concerning burden of proof.
For example, in Argentina-Leather (DS155), the Panel states: “The relevant rules concerning burden of proof, while not expressly provided for in the DSU, are well established in WTO jurisprudence. The general rule is set out in the Appellate Body report on United States - Measure Affecting Imports of Woven Wool Shirts and Blouses, wherein it is stated that: ‘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’.” 3
And in US-Cotton Yarn (DS192), the Panel rules in pertinent part: “The Appellate Body and subsequent panels endorsed this principle that a complainant bears the burden of proof. For example, the Appellate Body, in EC - Hormones, states as follows: ‘… 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. This seems straightforward enough and is in conformity with our ruling in United States - Shirts and Blouses, which the Panel invokes and which embodies a rule applicable in any adversarial proceedings.’” 4
As a whole, on the one hand, as ruled by the Panel in Argentina-Ceramic Floor Tiles (DS189), “[w]e recall that the burden of proof in WTO dispute settlement proceedings rests with the party that asserts the affirmative of a particular claim or defence. It implies that the complaining party will be required to make a prima facie case of violation of the relevant provisions of the WTO Agreement, which is for the defendant…to refute. In this regard, the Appellate Body has stated 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’…”; 5 on the other hand, as noted in the Panel Report on US-Copyright Act (DS160), “[t]he same rules apply where the existence of a specific fact is alleged. We note that a party who asserts a fact, whether the claimant or the respondent, is responsible for providing proof thereof. It is for the party alleging the fact to prove its existence. It is then for the other party to submit evidence to the contrary if it challenges the existence of that fact”. 6
In sum, with respect to the general rules of burden of proof in the context of violation complaints, as ruled by the Panel in Japan-Film (DS44): “[w]e note that as in all cases under the WTO/GATT dispute settlement system - and, indeed, as the Appellate Body recently stated, under most systems of jurisprudence - it is for the party asserting a fact, claim or defence to bear the burden of providing proof thereof. Once that party has put forward sufficient evidence to raise a presumption that what is claimed is true, the burden of producing evidence then shifts to the other party to rebut the presumption.…”. 7Certainly, as noted by the Appellate Body in US-Shirts and Blouses (DS33), “[i]n the context of the GATT 1994 and the WTO Agreement 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”.8
(ii) Burden of Proof in case of Invoking an Exception
As discussed above, generally, the burden of proof rests upon the party, whether complaining or defending, who asserts a fact or the affirmative of a particular claim or defence. As to be shown, this rule applies equally even in case of invoking an exception.
In this context, it is a general principle of law, well-established by panels in prior GATT/WTO practice, that the party (the defendant) which invokes an exception in order to justify its action carries the burden of proof that it has fulfilled the conditions for invoking the exception. However, in the author’s view, to understand the issue concerning burden of proof in case of invoking an exception, which is different from the relatively clear burden of establishing a prima facie case of violation on the complaining party, it’s helpful to stress some points here, among which the key point is to be cautious while determine which defence is “affirmative” and therefore burdens the defendant to provide sufficient evidence to rebut the challenged violation.
In United States-Shirts and Blouses (DS33), India argues that it was “customary GATT practice” that the party invoking a provision which had been identified as an exception must offer proof that the conditions set out in that provision were met. The Appellate Body acknowledges that several GATT 1947 and WTO panels have required such proof of a party invoking a defence, such as those found in Art. XX or Art. XI:2(c)(i), to a claim of violation of a GATT obligation, such as those found in Arts. I:1, II:1, III or XI:1. Arts. 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, i.e. invoking an exception in the nature of affirmative defences, should rest on the party asserting it. 9
However, as ruled by the Appellate Body in EC-Hormones (DS26/DS48), “[t]he general rule in a dispute settlement proceeding requiring a complaining party to establish a prima facie case of inconsistency with a provision of …[the covered agreements] before the burden of showing consistency with that provision is taken on by the defending party, is not avoided by simply describing that same provision as an ‘exception’. In much the same way, merely characterizing a treaty provision as an ‘exception’ does not by itself justify a ‘stricter’ or ‘narrower’ interpretation of that provision than would be warranted by examination of the ordinary meaning of the actual treaty words, viewed in context and in the light of the treaty's object and purpose, or, in other words, by applying the normal rules of treaty interpretation. 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.” 10
In short, during the process of the establishment of a violation, it’s generally up to the complainant to provide evidence concerning inconsistency, and only in case of limited exceptions the burden of proof rests upon the defending party invoking a defence in the nature of affirmative defences, such as those found in Art. XX or Art. XI:2(c)(i) of the GATT 1994.
(iii) Special Rules Concerning Non-Violation Claims
As suggested by the corresponding provisions, the most significant difference between violation complaints under Art. XXIII:1(a) of the GATT 1994 and non-violation ones under Art. XXIII:1(b) is, while, when violation complaints are brought under Art. XXIII:1(a), the infringement of an obligation of the agreements is considered prima facie to constitute a case of nullification or impairment, from the fact of violation alone, by establishing a formal presumption, such a presumption does not exist in non-violation cases.
With the lack of such a presumption, and given the nature of the factually complex disputes and particular claims of non-violation nullification or impairment, the resolution of issues relating to the proper allocation of the burden of proof is of particular importance. In case of non-violation nullification or impairment, i.e., where the application of Art. XXIII:1(b) is concerned, Art. 26.1(a) of the DSU and panel practice in the context of the WTO Agreement and GATT jurisprudence confirm that this is an exceptional course of action for which the complaining party bears the burden of providing a detailed justification to back up its allegations.
This requirement has been recognized and applied by a number of GATT panels. For example, the panel on Uruguayan Recourse to Art. XXIII noted that in cases “where there is no infringement of GATT provisions, it would be ... incumbent on the country invoking Article XXIII to demonstrate the grounds and reasons for its invocation. Detailed submissions on the part of that contracting party on these points were therefore essential for a judgement to be made under this Article”. And the panel on US - Agricultural Waiver noted, in applying the 1979 codification of this rule: “The party bringing a complaint under [Article XXIII:1(b)] would normally be expected to explain in detail that benefits accruing to it under a tariff concession have been nullified or impaired”.
Art. 26.1(a) of the DSU codifies the prior GATT practice, which provides in relevant part: “the complaining party shall present a detailed justification in support of any complaint relating to a measure which does not conflict with the relevant covered agreement ...”.
浙江省宁波市人民政府


宁波市禁止乱张贴乱涂写暂行规定
宁波市人民政府



现发布《宁波市禁止乱张贴乱涂写暂行规定》，自1998年4月5日起施行。


第一条 为了维护市容环境整洁，制止乱张贴、乱涂写行为，根据《城市市容和环境卫生管理条例》的有关规定，结合本市实际，制订本规定。
第二条 市及县（市）、区建设行政主管部门对禁止乱张贴、乱涂写工作实行统一监督管理。市及县（市）、区城建监察机构受建设行政主管部门的委托负责本规定的实施和对违反本规定的处罚工作。
第三条 任何单位和个人都应当维护建筑物、构筑物、树木及其他设施的整洁，并有权制止、检举损害其整洁的行为。
第四条 禁止在建筑物、构筑物、树木及其他设施上乱张贴、乱涂写。
零星招贴物应当张贴于固定的公共招贴栏中。在建筑物、构筑物、树木及其他设施上张贴其他宣传品或者涂写宣传标语的，应当经批准后，在规定的时间和地域范围内实施，并做到到期及时清除。
第五条 市及县（市）、区城建监察机构应当加强对乱张贴、乱涂写行为的管理。
街道办事处、镇人民政府应当在街道、居住区内选择适当地点，设置公共招贴栏，并加强管理。
第六条 单位和个人应当保持所使用、管理的建筑物、构筑物、树木及其他设施的整洁。对在上述建筑物、构筑物、树木及其他设施上乱张贴、乱涂写的，有权要求行为人及时清除、赔偿损失；对没有及时清除的，应当先行代为清除。
第七条 违反本规定第四条的，市及县（市）、区城建监察机构除责令行为人纠正违法行为，采取补救措施外，可以并处警告或每处10元的罚款。
第八条 违反本规定的行为人逾期不清除其乱张贴、乱涂写污迹的，市及县（市）、区城建监察机构和街道办事处、镇人民政府应当组织代为清除，并由城建监察机构责令其支付代为清除的费用；有关单位和个人已代为清除的，由市及县（市）、区城建监察机构责令违法行为人支付代
为清除费用。
代为清除费用按照乱张贴、乱涂写每处10元的标准计算；但实际发生的代为清除费用明显高于规定标准的，按实际发生的费用计算。
第九条 市及县（市）、区城建监察机构在实施行政处罚前，应当告知当事人作出行政处罚决定的事实、理由及依据；对在乱张贴、乱涂写行为中公布其通讯工具号码的违法行为人，可以通过其通讯工具通知其于指定的时间和地点接受处理。对逾期不接受处理的，可以中止其通讯工具
的使用。
中止通讯工具使用的期限，每次不得超过30天。中止通讯工具使用期间内，当事人接受处理的，城建监察机构应当及时通知有关电信业务经营单位恢复其通讯工具的使用。
第十条 根据本规定第九条中止违法行为人通讯工具使用的，海曙区、江东区、江北区由区城建监察机构调查取证后，报市城建监察机构审查决定；各县（市）及镇海区、北仑区由当地城建监察机构调查取证后自行作出审查决定。
作出审查决定的城建监察机构应当书面通知有关电信业务经营单位中止违法行为人通讯工具的使用。
邮电管理部门应当监督有关电信业务经营单位配合执行本规定。对拒不配合执行的电信业务经营单位，由市及市（县）、区邮电管理部门依照有关规定进行处理。
第十一条 当事人对市、县（市）、区建设行政主管部门作出的具体行政行为不服的，可以按照《行政复议条例》和《中华人民共和国行政诉讼法》的规定，申请行政复议或者提起行政诉讼。
当事人在法定期限内不申请复议，不提起诉讼，又不履行具体行政行为的，作出具体行政行为的市及县（市）、区建设行政主管部门可以依据《中华人民共和国行政诉讼法》的规定，申请人民法院强制执行。
第十二条 拒绝、阻碍市及县（市）、区城建监察机构管理人员执行公务，违反《中华人民共和国治安管理处罚条例》的，由公安部门依法处罚；情节严重构成犯罪的，依法追究刑事责任。
第十三条 市及县（市）、区城建监察机构管理人员应当秉公执法。对滥用职权、徇私舞弊、索贿受贿的，由所在单位给予行政处分；情节严重构成犯罪的，依法追究刑事责任。
第十四条 本规定的具体应用问题，由市城乡建设委员会负责解释。
第十五条 本规定于1998年4月5日起施行。本规定施行之前有乱张贴、乱涂写行为的，应当于本规定施行之日起10天内自行清除；逾期未清除的，按照本规定予以处罚。



1998年3月30日