Rules of Evidence as Applied under the WTO Jurisdiction
Rules of Evidence as Applied under the WTO Jurisdiction
刘成伟
【摘要】Rules of evidence are a crucial issue with respect to reaching conclusion of law and fact. In this article, the author means to scrutinize certain general rules or rulings of evidence as exercised and developed by panels and the Appellate Body under the WTO jurisprudence. For this purpose, the author mainly touches on such issues as concerning burden of proof, admissibility of certain evidence, panel’s right to seek information and the drawing of adverse inference from the refusal of parties to provide information requested by the Panel.
OUTLINE
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ⅠBurden 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
ⅡAdmissibility 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
ⅣAdverse 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
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ⅠBurden of Proof under the WTO Jurisprudence
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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
