Abstract: This article discusses the concept of burden of proof and prima facie case, respectively, in WTO dispute settlement based on the legal doctrine on burden of proof in Chinese law. From the perspective of Chinese law, burden of proof consists of three meanings on two levels, namely behavior burden of production and behavior burden of persuasion in the procedural sense, and result burden of bearing unfavorable consequence in its substantive sense. A prima facie case also includes the weaker account and the stricter account. They do not mean the same thing in every context, but what is the exact meaning thereof in a given context is clear. The real confusion of burden of proof in WTO dispute settlement is prima facie standard which, in practice, to some extent, relies on the determination of a panel on the basis of case to case.
Keywords: World Trade Organization, Dispute Settlement, Burden of Proof, Prima Facie Case, Chinese Law

 

I. Introduction

1. David Unterhalter, a member of the Appellate Body of the World Trade Organization (WTO), argued that “[s]ince the DSU does not specify rules concerning the burden of proof, it has been necessary for the Appellate Body, in a number of decisions, to explain how the burden of proof operates in WTO dispute settlement proceedings”.[1] He is quite right. There is really no any provision to deal with the issue of burden of proof in the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). However, up to date, the practice regarding burden of proof of both panels and the Appellate Body in WTO dispute settlement have resulted in, and still suffering some—if not a great deal of—criticism, especially from the academic circle.

2. Two major confusions about the practice concerning burden of proof in WTO dispute settlement have uncovered. The first one is what the exact meaning of burden of proof is after all, especially what kind of and when the burden of proof is transferable and why; [2] and the other is with respect to prima facie case.[3] Some authors offered their potential solutions for overcoming these confusions.[4] For these pressure in part, in 2008, two members of the Appellate Body of the WTO, David Unterhalter, who was appointed as the chairman of the Appellate Body in 2009, and Yasuhei Taniguchi, published two articles in the name of the Appellate Body member which seemingly attempt to clarify the approach of the Appellate Body to the burden of proof in WTO dispute settlement.[5] But, like those reviewers, they still rely on, to some extent, the fundamental theories and legal rules of law of evidence in both common law and civil law. Actually, they do not yet walk out from the woods of common law and civil law, and accordingly, they did not yet tell us what kind of and when the burden of proof is transferable and begged some new confusion when they resolved some in this regard. Maybe, it is time for us to understand the issue from a new perspective — Chinese law, for example. It is the very task this article intends to undertake.

3. In order to live up to this task, the article is divided into five parts. The first part introduces the background and puts forward the problem. The existing examination of burden of proof in WTO dispute settlement mainly bases on common law and civil law. Only do like this, some confusion which may be inherently rooted in common law and civil law always cannot be resolved. However, some will be more understandable from the perspective of Chinese law. The second part observes the concept of burden of proof in domestic law system, such as common law and civil law, but especially Chinese law. The observation reveals that, although there are some similarities among them, the critical differences exist in Chinese law which might be very useful to analyze burden of proof practice in WTO dispute settlement. Then, the third part and the fourth part examine, respectively, burden of proof and a prima facie case in WTO dispute settlement, in particular the exact meanings thereof by employing doctrine on burden of proof in Chinese law, since there is no specific rule concerning burden of proof and only one provision concerning a prima facie case in the DSU. Finally, the fifth part offers a brief conclusion to the discussions of this paper.

II. Concept of burden of proof in domestic law

II.A. Common law and civil law

4. The burden of proof is an elusive concept. It has been used in a variety of ways in a variety of domestic systems.[6] However, it is well-known that burden of proof comprises, in common law practice, two separate concepts: burden of production and burden of persuasion, and almost one substantial meaning in civil law system as burden of persuasion, regardless of a little bit differences between them.

Common law

5. In common law, the procedural meaning of burden of proof, which called burden of production, is one of “producing sufficient evidence to justifying the judge in leaving the issue to the jury or, where there is no jury, to allow the hearing to continue”. The substantive aspect of burden of proof is called the “burden of persuasion” or “risk of non-persuasion”. In essence it means that, in the event the evidence submitted by the parties is incomplete or with evidence in equipoise, the party with the burden of persuasion loses. This is the real meaning of burden of proof.[7]

6. At the outset, both burden of production and burden of persuasion rest on the party urging a particular claim. The burden of production means that the party bearing the burden—the claimant at the outset—must present evidence to support its version of all disputed facts and all mixed questions of law and fact. The burden of persuasion means that the party bearing the burden—again, the claimant at the outset—must bear the risk that after evaluating all the evidence and arguments presented by both sides the adjudicator will be in equipoise. In this situation, the benefit of the doubt goes to the opponent of the party bearing the persuasion burden—i.e., to the respondent on the claimant’s basic claim.[8]

Civil law

7. In German trial practice, burden of persuasion is the key component of burden of proof. The concept of a production burden has a very limited meaning, and is really quiet different from the common law burden of production. Burden of production in the common law use of the term does not exist in the German civil law system.[9] So there is assertion that the civil law notion of burden of proof has only one meaning. It corresponds to the real sense of burden of proof in common law, namely the burden of persuasion.[10] In French law system, the concept of the burden of proof is well established in the same sense as that of the German objective burden of proof or the common law burden of persuasion.[11]

8. Anyway, common law and civil law share the two principles. First, the burden of proof (in its real sense), as a fundamental substantive obligation, does not shift and remains on a party that bears it throughout the proceedings. Second, the scope of the burden of proof is the same which is limited to issue of fact.[12]

II.B. Chinese law

9. In general, three major doctrines exist in Chinese literature in the field of the law of evidence. First, burden of behavior doctrine, that is, burden of proof is the behavior burden of producing evidence, similar to the burden of production in common law. Secondly, burden of result doctrine, which means that the party who has the burden must bear the unfavorable result where the facts of the case are unclear or evidence is in equipoise, like the burden of persuasion both in common law and civil law. The last one is doctrine of double meanings which demonstrates that burden of proof includes both burden of behavior and result as well. Totally, the last doctrine is generally-accepted both in practice and academia in China.[13]

10. Burden of proof comprises, according to the double meanings doctrine, three separate but closely connected concepts. First, behavior burden of production, it can be regarded as the same as burden of production in common law. Secondly, behavior burden of persuasion, it means that the party who bears burden of proof shall employ evidence to persuade the adjudicator to believe what it claimed is true. The behavior of proving includes behavior of producing and persuading. Behavior burden of production and behavior burden of persuasion constitute behavior burden of proof. Each claim or fact will need to be proven by the party submitting it. Thirdly, result burden of bearing unfavorable consequence, which means that the party who bears burden of proof shall take the unfavorable fruit where the fact of the case is unclear which resulted from the party failed to produce evidence or persuade the adjudicator or evidence is in equipoise.[14] Therefore, in a given case, there may be some behavior burdens assumed by one party or the other, however merely one result burden which always, in general, lies with the party who asserted the case during the proceedings.

11. On its face, it seems that burden of persuasion in both common law and civil law separates, or equals to, two concepts of behavior burden of persuasion and result burden of bearing unfavorable consequence in Chinese law. However, there are some significant differences between them. In Chinese law, behavior burden might be transferable; result burden is, however, not transferable, but fixed. Behavior burden of persuasion always accompanies behavior burden of production and it works after the behavior burden of production is satisfied. That is to say that the party who submitted evidence for its claim or defense, at the same time, triggers the duty to persuade the adjudicator by using those evidence. For example, in WTO dispute settlement, the complaining party brought a claim challenging the defending party who violated provision A. The complaining party should present evidence and convince the panel concerning this violation. Provision B is invoked by the defending party to justify its measure after establishment of a prima facie case by the complaining party. It is then up to the defending party to present evidence and convince the panel for this justification. In principle, behavior burden of production which is the same as burden of production usually shifts back and forth many rounds between parties in a case, so behavior burden of persuasion does, too. Result burden of bearing unfavorable consequence is more akin to ultimate burden of persuasion both in common and civil law, it does not shift and remain on a party that bears it throughout the proceedings.

12. In a nutshell, in Chinese law of evidence, burden of proof is divided into behavior burden and result burden. Behavior burden, which consists of behavior burden of production and behavior burden of persuasion and can be called the procedural or weak sense of burden of proof or evidentiary burden, is movable. Result burden, namely result burden of bearing unfavorable consequence which we call the substantive or strong sense of burden of proof, however, is immovable. What the burden of persuasion never shifts in both common law and civil law only means, in the point of Chinese law view, the ultimate burden of proof on the macro level, not the burden of persuasion of each case on the micro plane, such as plaintiff’s case or the defendant’s case, during the proceedings.

III. Burden of proof in WTO dispute settlement

13. As argued in the beginning, there is really no any provision to deal with the issue of burden of proof in the DSU. Unterhalter believes it is the very one should be explained in WTO dispute settlement proceedings. We turn here our attentions to the practice of the WTO, and try to offer some analyses from the perspective of Chinese law. [15]

14. The Appellate Body stated in US-Wool Shirts and Blouses 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 claimed is true, the burden then shift to the other party, who will fail unless it adduces sufficient evidence to rebut the presumption.[16]

15. In this paragraph, the term of burden of proof indicates, from the perspective of Chinese law, behavior burden of proof, say, behavior burden of production and accompanying behavior burden of persuasion. “[T]hat party adduces evidence” is an act of bearing behavior burden of production. “[S]ufficient to raise a presumption that what is claimed is true” demonstrates that the party satisfied behavior burden of persuasion. “[T]o rebut the presumption” is a kind of behavior burden of persuasion of the opposite party who adduced its evidence and accordingly met its behavior burden of production. Behavior burden of proof is the procedural sense of burden of proof. It always shifts between the parties, depending on who asserts the claim or defence. However result burden does not shift, regardless of how many rounds behavior burden shifted between the parties.

16. In EC-Hormones, the Appellate Body explained further that a complaining party is required to establish a prima facie case. The Appellate Body said the following:

The initial burden lies on the complaining party, which must establish a prima facie case of inconsistency with a particular provision… when a prima facie case is made, the burden of proof moves to the defending party, which must in turn counter or refute the claimed inconsistency.[17]

17. Similar reasoning was adopted by the Appellate Body in respect of disputes under article 21.5 of the DSU. In Canada-Dairy (Article 21.5-New Zealand and US II), the Appellate Body found that:

As a general matter, the burden of proof rests upon the complaining Member… [who] must make a prima facie case by presenting sufficient evidence to raise a presumption in favor of its claim.[18]

18. As far as Chinese law concerns, the initial burden or the burden of proof mentioned in the former case is used in the procedural or weak sense. Burden of proof here is behavior burden of production and behavior burden of persuasion. However, in the latter case, the burden of proof, as a general matter, bearing by the complaining party, including but not limited to establish a prima facie case, is a comprehensive burden which includes behavior burden of both production and persuasion and result burden, or both the procedural sense and the substantive sense. Upon a prima facie case made out, it means that the complaining party has met behavior burden of production and behavior burden of persuasion. Therefore, its behavior burden discharged. However, it does not discharge and must bear result burden of bearing unfavorable consequence unless the other party failed to adduce sufficient evidence to rebut its prima facie case. The Appellate Body used the term of burden of proof in different sense at different place.

19. Finally, in explaining the consequences of a party failing to make out a prima facie, the Appellate Body stated in US-Gambling:

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 out a prima facie case.[19]

20. “[T]he complaining party has failed to make out a prima facie case” means that there exist two potential situations: first, the complaining party did not satisfied behavior burden of production, and second, the complaining party did not satisfied behavior burden of persuasion though it has met behavior burden of production. In general, the complaining party failed to make out a prima facie case, whatever situation, shows that it has not met behavior burden of proof, and consequently, must bear result burden of bearing unfavorable consequence—lose the case. Needless to say, a panel cannot rule in favor of the complaining party in this event.

21. To summarize, burden of proof in WTO dispute settlement also can divided into three meanings on the procedural and substantive levels: behavior burden of production which is equal to burden of production in the context of common law, behavior burden of persuasion which always accompanies behavior burden of production, and result burden of bearing unfavorable consequence which rests upon a party, more precisely to say, the complaining party, and does not shift in the entire proceedings. “The burden of proof in its true sense does not shift, it rests upon a party throughout the case, and that party must at the end of the case satisfy the burden of proof, upon a consideration of all the evidence adduced in the case.”[emphasis added] Actually, the burden of proof in its true sense, similar to its substantive sense, may be regarded as result burden of bearing unfavorable consequence, not burden of persuasion, in Chinese law.

22. However, it is noteworthy that, in WTO dispute settlement, the subject who may provide information to panels is very broad, even includes amicus curiae, and the parties shall carry on the duty of collaboration in submitting evidence in light of the principle of good faith, and it is panel’s exclusive competence to evaluate evidence and authorize how weight to evidence under article 11 of the DSU. Consequently, the two levels of burden of proof do not share the same status in practice. The gravity of burden of proof in WTO dispute settlement, in essential, falls on its substantive sense of result burden of bearing unfavorable consequence. In this regard, among the three meanings on two levels of burden of proof, behavior burden of proof serves for result burden of proof, to some extent as possible. The purpose of distributing and subsequently, shifting behavior burden of proof is for determining result burden of proof at the end of the case. “[T]he shifting of the burden of proof is central in shaping how ultimately disputes are decided and frames the terms of engagement which may be fundamental to the decisions parties make in determining whether to bring a case”.[20] In practice, why the parties always debate unlimitedly on burden of proof, maybe, just because they command well its substantive sense is result burden of bearing unfavorable consequence. Furthermore, as observed-above, the concept of burden of proof does not always mean the same thing in every context since there are three meanings of burden of proof on the two levels. Panels and the Appellate Body often use the term of burden of proof in different sense, sometimes the procedural sense and sometimes both procedural and substantive sense, at different place.

23. The panel of US-Section 301 Trade Act clarified, in its report, as follows:

Part of our task in accordance with Article 11 of the DSU is to make factual findings. We are guided in this matter, as well as others, by the jurisprudence of the Appellate Body. In accordance with this jurisprudence, both parties agreed that it is for the EC, as the complaining party, to present arguments and evidence sufficient to establish a prima facie case …. Once the EC has done so, it is for the US to rebut that prima facie case. Since, in this case, both parties have submitted extensive facts and arguments in respect of the EC claims, our task will essentially be to balance all evidence on record and decide whether the EC, as party bearing the original burden of proof, has convinced us of the validity of its claims. In case of uncertainty, i.e. in case all the evidence and arguments remain in equipoise, we have to give the benefit of the doubt to the US as defending party.[21]

24. Behavior burden of production, behavior burden of persuasion, and result burden of bearing unfavorable consequence which, in general, rest upon the complaining party, are all can seen in this statement. Apparently, the intention of the panel by employing the term of “original burden of proof”, in this context, is to underscore result burden of bearing unfavorable consequence in its substantive sense: [I]n case of uncertainty, i.e. in case all the evidence and arguments remain in equipoise, we have to give the benefit of the doubt to the US as defending party. Thus, the former part of this paragraph talked about the behavior burden of proof, and however, what the latter said mainly is the other meaning, namely the result burden of proof in this case. #p#分页标题#e#

IV. Prima facie case in WTO dispute settlement

25. In WTO case law, the concept of burden of proof is used in conjunction with the term of a prima facie case. [22] Prima facie case[23] —— a “new” concept with which we are familiar but cannot be found in the text of the General Agreement on Tariffs and Trade (GATT) is introduced by article 3.8 of the DSU, which is deemed as an “emperor clause” applicable to burden of proof in the case of violation complaint within WTO dispute settlement mechanism.[24]

26. The concept of prima facie by now has become a well-established feature of WTO jurisprudence.[25] Up to the beginning of the year of 2010 which marks the 15th anniversary of the WTO, Prima facie case was, according to an uncompleted statistics, specifically examined in forty-five cases and fifty reports of panels and the Appellate Body, since it was articulated for the first time in US arguments submitted before the Japan – Taxes on Alcoholic Beverages in 1996, [26]after the official operating of WTO dispute settlement mechanism.[27] There are eleven reports, in particular, in which prima facie case was observed unprecedentedly in the year of 2008.

27. Unterhalter is very right always. He said “it will be apparent that the Appellate Body has understood the burden of proof by attaching particular significance to the concept of a prima facie case.”[28] So, we next look at the concept of a prima facie in the eyes of Chinese law.
28. As stated aforesaid, the initial burden of proof of a case rests upon a complaining party who must make out a prima facie case. The initial burden of proof, in this context, means nothing more than behavior burden of proof, including behavior burden of production and persuasion in Chinese law. Therefore, making out a prima facie case is nothing but behavior burden of production and persuasion in this regard. After establishing the prima facie case, the complaining party still needs to assume result burden of bearing unfavorable consequence. The complaining party will fail to meet its result burden where it failed to make out a prima facie case, namely meet its behavior burden, and accordingly, lose the case. Therefore, to some extent, whether the complaining party would prevail or lose the case depends on the performance of the responding party in respect to its behavior burden of production and persuasion. The prima facie case will become conclusive if absent evidence from the responding party.

29. The Appellate Body preached in its report of EC – Hormones that:

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 favor of the complaining party presenting the prima facie case.[29]
30. The Appellate Body highlighted this definition recurrently in Canada – Aircraft[30] and Japan – Apples .[31] It was also repeatedly invoked in Thailand – H-Beams [32], US – Shrimp (Ecuador) [33], and China – Publications and Audiovisual Products[34] by different panels respectively and so on.

31. The sentence may be separated three parts: first, the complaining party met its behavior burden of production and behavior burden of persuasion. Second, the defending party did not meet its behavior burden of production, or the defending party met its behavior burden of production, but did not satisfied its behavior burden of persuasion, so the panel was not of the point that its evidence adduced was sufficient to support its refutation, accordingly, failed to meet its behavior burden of proof. Finally, the complaining party discharged its result burden of bearing unfavorable consequence since there is no unclear fact or evidence in equipoise. In this context, a prima facie case consists of both behavior burden of proof and result burden of proof.

32. Borrowed the approach adopted by Unterhalter, behavior burden can be read as the weaker account of a prima facie case, and the stricter account thereof is result burden, that is proof sufficient to discharge the onus resting upon a party — the complaining party in principle, absent evidence in rebuttal or effective rebuttal.[35] It seems sometimes, like burden of proof, a prim facie case used in the weaker account, sometimes in both the weaker account and the stricter account.

33. In EC-Hormones, as quoted above, the Appellate Body explained: [W]hen a prima facie case is made, the burden of proof moves to the defending party, which must in turn counter or refute the claimed inconsistency. Make a prima facie case is behavior burden of the complaining party in its weaker account. The burden of proof which moves to the defending party is also only behavior burden of production and persuasion, not include result burden of bearing unfavorable consequence which always falls on the shoulders of the complaining party and does not shift throughout the case. So, on the technical level, when a panel or the Appellate Body say one party must make out a prima facie case, it only means the weaker account of a prima facie case. Only like this, what they said that the burden of proof moves to the opposite party is possible and plausible.

34. In US – Shrimp (Ecuador), the United States did not challenge the factual and legal claims which Ecuador made before the panel. Ecuador considered that it can prove its claims were well-founded. But the panel did not agree with Ecuador who, in its report, pointed out that:

Yet, the fact that the United States does not contest Ecuador's claims is not a sufficient basis for us to summarily conclude that Ecuador's claims are well-founded. Rather, we can only rule in favour of Ecuador if we are satisfied that Ecuador has made a prima facie case. We take note in this regard that the Appellate Body has cautioned panels against ruling on a claim before the party bearing the burden of proof has made a prima facie case. [36]

35. Although the paragraph indicates that the legal obligation of the complaining party to make out a prima facie case is an integral party of burden of proof which must bear. It means also, however, that the complaining party should bear the behavior burden of production and behavior burden of persuasion and satisfied the panel before the behavior burden moves to the defending party, but not include result burden of bearing unfavorable consequence.[37] Consequently, “a ruling that a party has made out a prima facie does not entail the consequence that absent adequate evidence from the defense the complaining party must succeed.”[38]

36. Actually, throughout the entire proceedings, the party, whether complaining or defending, who asserts the affirmative of a claim or defence must make out a prime facie for its each claim or defence. However, to the whole case, the stricter account of a prima facie case lies in the complaining party which is belongs to the real sense of the original burden of proof borne by the complaining party. “The stricter account of a prima facie case fixes the complaining party with the burden of proof in the true sense.”[39]

37. Further, traditionally, establishing a prima facie case serves the purpose of allowing the case to move forward from the initial phase where the claimant is required to present to the adjudicator evidence supporting the claim, to the point where the responding party is required to rebut evidence represented by the claimant.[40] At this place, we can look the burden of establishing a prima facie case as a prerequisite or fundamental step for pushing a case forward.[41]

38. Totally, establishing a prima facie case is an initial burden of proof which the complaining party must bear, and also the prerequisite, in its weaker account, or in the procedural sense, for moving the dispute settlement procedures forward.[42]

39. Turn back the definition offered by the Appellate Body in EC – Hormones. Procedurally speaking, it seems to denote that whether a prima facie case has been made should subject to the refutation of the defending party. In other words, the refutation of the defending party is the main, if not all, determinant of determining the establishment of a prima facie case. However, on its face, it is obvious that the establishment of a prima facie case is prior to the refutation of the defending party under article 3.8 of the DSU, though the refutation of the defending party may be taken into account to some extent and in some cases. Does it need to make a tentative finding on the establishment of a prima facie case, namely whether the claimant meets its behavior burden of proof in the process of dispute settlement?

40. The panel in Canada – Aircraft noted “[T]hat there is nothing in the DSU that requires a panel to rule on the establishment of a prima facie case as a preliminary matter. Indeed, the DSU makes no provision for any form of preliminary or interim ruling. Furthermore, we are not aware of any WTO panels that have made preliminary rulings on whether the complaining party has established a prima facie case. Whereas a critical decision for panels in every case is whether or not a prima facie case has been established, and whether or not the respondent has rebutted any such prima facie case, in practice these decisions are made in light of all the evidence adduced by the parties, including both written and oral submissions. Such decisions are, therefore, necessarily made in the latter stages of the panel process.”[43]

41. This issue then was challenged by India in India – Quantitative Restrictions. But the Appellate Body said that “[a] panel was not required to make an explicit statement that a prima facie case has been made”.[44] In Korea – Dairy, Korea regards “a panel must evaluate and make a finding on whether the complaining Member has established a prima facie case of a violation” as a “threshold matter”, before requiring the respondent to submit evidence of its own case or defence. Unfortunately, the Appellate Body was not of the same opinion as that of Korea, it held that “[w]e found 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.”[45] The Appellate Body further emphasized in Thailand – H-Beams that “[i]n 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.”[46]

42. From a due process point of view, this is problematic because the party against whom a prima facie case has been raised is not given adequate notice of the necessity to refute.[47] However, in WTO dispute settlement, with the authorization of article 11 and article 13 of the DSU, all evidence must be submitted by all parties prior to the point when the panel reaches its conclusions and distributes the preliminary panel report; and panels have been known to consider outside information submitted by experts as well as arguments presented by opposing and third parties to the dispute.[48] “Another important point we should keep in mind when discussing the concept of prima facie case is that we are not concern with a temporal sequence of proof.” “[T]he point in time at which a prima facie case is established is not always clearly discernible and, therefore, not normally mentioned in the panel reports.” [49] So, the weaker account of a prima facie is weakened further in practice, even relatively meaningless, and the true gravity, similar to that of burden of proof, is the stricter account thereof, or the result burden. In fact, “the Appellate Body has utilized the concept of a prima facie case to cast the duty on the party who, in order to be successful, must finally satisfy the decision-maker that it is entitled to succeed in its complaint. This duty captures the burden of proof in its true sense. ”[50]

43. But it does not mean that “Because the concept of a production burden in a WTO proceeding is relatively meaningless, we can assume that article 3.8 of the DSU intends to shift to the respondent the full burden of proof.”[51] In fact, in WTO dispute settlement, some procedural issues are not legal procedures applicable to panels and parties, but some working and analyzing procedures of panels. The determination made by the Appellate Body in EC – Hormones that, the burden of proof may shift only once the panel has conducted an analysis to determine that requisite of a prima facie standard has been achieved by the complaining party,[52] is nothing more than the process of analysis made by panels. In practice, it is minor important, but otherwise in theory.

44. We can thus conclude that a prima facie case composes two meanings: behavior burden of production and persuasion in its procedural sense, or the weaker account, and result burden in its substantive sense, or the stricter account. When a panel talks about that establishing a prima facie case is the “initial” burden of proof of the complaining party, it indicates the behavior burden the complaining party should bear, at least in most cases. When a panel says that the complaining party who has made out a prima facie case should bear the “original” burden of proof, it means the result burden the complaining party must assume.

45. From the perspective of Chinese law, the concept of burden of proof, including but not limited to prima facie case, in WTO dispute settlement is not a so much ambiguous thing as some scholars described.[53] Although the concept of burden of proof does not always mean the same thing in every context, the procedural and the substantive sense of it are very clear in different contexts after all. Actually, the real problem of burden of proof and a prima facie case is not the concept itself, or the question of which party must satisfy the decision-maker on a particular issue once all the evidence has been adduced, but how a panel determines whether one party has borne its behavior burden of persuasion. It is a question concerning standard of proof applied, so called prima facie standard, as James Headen Pfitzer and Sheila Sabune indicated correctly, which, in practice, to some extent, relies on the determination of a panel on the basis of case to case.[54]

V. Conclusion

46. From the perspective of Chinese law in which burden of proof consists of behavior burden and result burden, it is better to understand the problem what the exact meaning of burden of proof and a prima facie case in WTO dispute settlement than from that of common law and/or civil law, and the paper confirms that the real problem regarding burden of proof and a prima facie is the standard of proof, here prima facie standard. Certainly, as what the other authors did and criticized by the author in the beginning, this perspective can not resolve all problems we face now and it will beg some new ambiguity when resolved some confusion. It is impossible and unnecessary to strive to this ambition. After all, I do agree with what Taniguchi said: “[T]he WTO system is unique in many respects, it is amenable to a useful comparison and the domestic systems and doctrines seem to provide useful tool for its analysis. Nevertheless, there are many ambiguities also in domestic systems in this area. These must be left to the future.”[55]
【作者简介】
Liu Heng，PhD in International Law, Assistant Professor, Institute of European Studies, Chinese Academy of Social Sciences.
【注释】
[1]David Unterhalter, “The Burden of Proof in WTO Dispute Settlement”, in M. E. Janow, V. Donalolson and A. Yanovich eds., The WTO: Governance, Dispute Settlement and Developing Countries, Juris Publishing. Inc, 2008, p. 347.
[2]See John J. Barceló III, Burden of Proof, Prima Facie Case and Presumption in WTO Dispute Settlement, Cornell International Law Journal, vol. 42, no. 1, 2009, pp.42-43.
[3]See James Headen Pfitzer and Sheila Sabune, Burden of Proof in WTO Dispute Settlement: Contemplating preponderance of the Evidence, ICSID Dispute Settlement and Legal Aspects of International Trade, Issue Paper No. 9, 2009, p.27. Joost Pauwelyn, Evidence, Proof and Persuasion in WTO Dispute Settlement: Who Bears the Burden? Journal of International Economic Law, vol. 1, no. 2, 1998, p. 258.
Prima facie case will be specifically discussed later.
[4]See Pauwelyn (3) 258.
[5]Although Unterhalter explained the Appellate Body’s approach to the application of the prima facie case in WTO dispute settlement tends not to the prima facie case in either common law or civil law jurisdiction. See David Unterhalter, “The Burden of Proof in WTO Dispute Settlement” and Yasuhei Taniguchi, “Understanding the Concept of Prima Facie Case in WTO Dispute Settlement”, in M. E. Janow, V. Donalolson and A. Yanovich eds., The WTO: Governance, Dispute Settlement and Developing Countries, Juris Publishing. Inc, 2008, pp. 543-572.
[6]Yasuhei Taniguchi, “Understanding the Concept of Prima Facie Case in WTO Dispute Settlement”, in M. E. Janow, V. Donalolson and A. Yanovich eds., The WTO: Governance, Dispute Settlement and Developing Countries, Juris Publishing. Inc, 2008, p. 554.
[7]See Pauwelyn (n 3) 229.
[8]See Barceló III (n 2) 27.
[9]Ibid, 33-34.
[10]See Pauwelyn (n 3) 229. However, this assertion is controversial. Some said the subjective burden of proof in German civil procedure is similar to the burden of production in common law, and the objective burden of proof similar to the burden of persuasion.
[11]See Lagarde, Réflexion Critique; and Guinchard, Droit de la Procédure Civile. Cited from Yasuhei Taniguchi, “Understanding the Concept of Prima Facie Case in WTO Dispute Settlement”, in M. E. Janow, V. Donalolson and A. Yanovich eds., The WTO: Governance, Dispute Settlement and Developing Countries, Juris Publishing. Inc, 2008, p. 563.
[12]See Pauwelyn (n 3) 230.
[13]See He Jiahong and Liu Pinxin, ZhengJuFaXue (Law of Evidence) (Beijing: Falü ChuBanShe (Law Press)), 2007, p. 296.
[14]Ibid, 297.
[15]In this regard, we will, inter alia, follow David Unterhalter, refer to the four classical cases as the basis of analysis.
[16]Appellate Body Report, US – Wool Shirts and Blouses, WT/DS33/AB/R, adopted 23 May 1997, at 14, DSR 1997:1, 323, at 335.
[17]Appellate Body Report, EC – Hormones, WT/DS26/48/AB/R, adopted 13 February 1998, para. 98.
[18]Appellate Body Report, Canada – Dairy (Article 21.5, New Zealand and US II), WT/DS103/113/AB/R, adopted, 17 January 2003, para. 66.
[19]Appellate Body Report, US – Gambling, WT/DS285/AB/R, adopted 20 April 2005, paras. 138-140.
[20]James Headen Pfitzer and Sheila Sabune (n 3) 27.
[21]Panel Report, US –Section 301 Trade Act, WT/DS152/R, adopted 27 January 2000, para. 7.14.
[22]See Taniguchi (n 6) 553.
[23]There is no concept of prima facie case in the text of the GATT 1947. Prima facie case penetrates gradually into the trade dispute settlement mechanism on the basis of the theory and practice of disputes settlement in GATT. There is only half page focused on it in a noteworthy book in relation to evidentiary issues in WTO dispute settlement: Jeff Waincymer, WTO Litigation: Procedural Aspects of Formal Dispute Settlement (London: Cameron May 2002) 538. As to prima facie case in other international dispute resolution, see Durward V. Sandifer, Evidence Before International Tribunals, Revised Ed. (Charlottesville: University Press of Virginia 1975) 169-174, Mojtaba Kazazi, Burden of Proof and Related Issues: A Study on Evidence Before International Tribunals (The Hague: Kluwer Law International 1996) 326-343, Chittharanjan F. Amerasinghe, Evidence in International Litigation (Leiden: Martinus Nijhoff Publishers 2005) 246-261 and Rüdiger Wolfrum ‘International Courts and Tribunals, Evidence’, in R. Wolfrum (Ed.), The Max Planck Encyclopedia of Public International Law, Oxford University Press, 2010, online edition, [www.mpepil.com]. #p#分页标题#e#
[24]It reads as follows: In cases where there is an infringement of the obligations assumed under a covered agreement, the action is considered prima facie to constitute a case of nullification or impairment. This means that there is normally a presumption that a breach of the rules has an adverse impact on other Members parties to that covered agreement, and in such cases, it shall be up to the Member against whom the complaint has been brought to rebut the charge.
[25]Taniguchi (n 6) 553.
[26]See Panel Report, Japan – Taxes on Alcoholic Beverages, WT/DS11/R, adopted 4 October 1996, para. 4.32.
[27]They are: Japan – Taxes on Alcoholic Beverages (Japan –Alcoholic Beverages II) (DS11), United States — Restrictions on Imports of Cotton and Man-Made Fibre Underwear (US - Underwear)（DS24）, United States — Measures Affecting Imports of Woven Wool Shirts and Blouses from India (US - Wool Shirts and Blouses)（DS33）, India — Patent Protection for Pharmaceutical and Agricultural Chemical Products (India – Patents)（DS50）, European Communities — Measures Concerning Meat and Meat Products (Hormones) (EC – Hormones)（DS26/48）, Japan — Measures Affecting Agricultural Products (Japan – Agriculture Products II)（DS76）, Canada — Measures Affecting the Export of Civilian Aircraft (Canada – Aircraft)（DS70）, India — Quantitative Restrictions on Imports of Agricultural, Textile and Industrial Products (India – Quantitative Restrictions)（DS90）, Korea — Definitive Safeguard Measure on Imports of Certain Dairy Products (Korea – Dairy)（DS98）, Guatemala — Definitive Anti-Dumping Measure on Grey Portland Cement from Mexico (Guatemala – Cement II)（DS156）, United States — Import Measures on Certain Products from the European Communities (US - Certain EC Products)（DS165）, European Communities — Measures Affecting Asbestos and Products Containing Asbestos ( EC – Asbestos)（DS135）, Thailand — Anti-Dumping Duties on Angles, Shapes and Sections of Iron or Non-Alloy Steel and H Beams from Poland (Thailand – H-Beams)（DS122）, United States — Definitive Safeguard Measures on Imports of Circular Welded Carbon Quality Line Pipe from Korea (US – Line Pipe) (DS202), India — Measures Affecting Trade and Investment in the Motor Vehicle Sector (India – Autos)（DS146/175）, Egypt — Definitive Anti-Dumping Measures on Steel Rebar from Turkey (Egypt – Steel Rebar)（DS211）, European Communities — Trade Description of Sardines (EC – Sardines)（DS231）, Canada — Measures Affecting Dairy Exports. Second Recourse to Article 21.5 of the DSU by New Zealand and the United States (Canada – Dairy (Article 21.5 – New Zealand and US II))（DS103/113）, Japan — Measures Affecting the Importation of Apples (Japan – Apples)（DS245）, Canada — Measures Relating to Exports of Wheat and Treatment of Imported Grain (Canada - Wheat Exports and Grain Imports)（DS276）, United States — Sunset Reviews of Anti-Dumping Measures on Oil Country Tubular Goods from Argentina (US - Oil Country Tubular Goods Sunset Reviews)（DS268）, United States — Measures Affecting the Cross-Border Supply of Gambling and Betting Services (US – Gambling)（DS285）, United States — Anti-Dumping Measures on Oil Country Tubular Goods (OCTG) from Mexico (US - Anti-Dumping Measures on Oil Country Tubular Goods )（DS282）, Mexico — Definitive Anti-Dumping Measures on Beef and Rice (Mexico – Anti-Dumping Measures on Rice)（DS295）, United States — Laws, Regulations and Methodology for Calculating Dumping Margins (Zeroing) (US – Zeroing (EC))（DS294）, European Communities — Measures Affecting the Approval and Marketing of Biotech Products (EC – Approval and Marketing of Biotech Products)（DS291/292/293）, European Communities — Selected Customs Matters (EC - Selected Customs Matters)（DS315）, United States — Anti-Dumping Measure on Shrimp from Ecuador (US – Shrimp (Ecuador))（DS335）, Chile — Price Band System and Safeguard Measures Relating to Certain Agricultural Products (Chile – Price Band System)（DS207）, United States — Final Anti-dumping Measures on Stainless Steel from Mexico (US – Stainless Steel (Mexico))（DS344）, United States — Measures Relating to Shrimp from Thailand (US – Shrimp (Thailand))（DS343）, United States — Customs Bond Directive for Merchandise Subject to Anti-Dumping/Countervailing Duties (US - Customs Bond Directive)（DS345）, India — Additional and Extra-Additional Duties on Imports from the United States (India - Additional Import Duties)（DS360）, European Communities — Regime for the Importation, Sale and Distribution of Bananas. Second Recourse to Article 21.5 of the DSU by Ecuador (EC – Bananas (Article 21.5 – Ecuador II))（DS27）, European
Communities — Regime for the Importation, Sale and Distribution of Bananas. Second Recourse to Article 21.5 of the DSU by the United States (EC – Bananas (Article 21.5 – US))（DS27）, China – Measures Affecting Imports of Automobile Parts (China – Auto Parts) (DS339/340/342), United States — Continued Existence and Application of Zeroing Methodology (US – Continued Zeroing)（DS350）, China — Measures Affecting the Protection and Enforcement of Intellectual Property Rights (China – Intellectual Property Rights)（DS362）, China — Measures Affecting Trading Rights and Distribution Services for Certain Publications and Audiovisual Entertainment Products (China - Publications and Audiovisual Products) (DS363) ,and US — Anti-Dumping Measures on Polyethylene Retail Carrier Bags from Thailand (US - Carrier Bags) (DS383).
During this period, according to circulation of reports which discussed the issue of prima facie case in each year, the figures are: 1997：1, 1998：2, 1999：4, 2000：3, 2001：4, 2002：7, 2003：2, 2004：2, 2005：3, 2006：5, 2007：3, 2008：11, 2009：2.
[28]Unterhalter (n 1) 548.
[29]Appellate Body Report, EC – Hormones, WT/DS26/AB/R, WT/DS48/AB/R, n 17, para. 104 [footnote omitted].
[30]See Appellate Body Report, Canada – Aircraft, WT/DS70/AB/R, adopted 20 August 1999, para. 192.
[31]See Appellate Body Report, Japan – Apples, WT/DS245/AB/R, adopted 10 December 2003, para. 159.
[32]See Panel Report, Thailand – H-Beams, WT/DS122/R, adopted 5 April 2001, para. 7.49.
[33]See Panel Report, US – Shrimp (Ecuador), WT/DS335/R, adopted 20 February 2007, para. 7.8.
[34]See Panel Report, China – Publications and Audiovisual Product, WT/DS363/R, adopted 19 January 2010, para. 7.3.
[35]He said: It is to be recalled that a prima facie case may be understood as evidence adduced by one party so as to place an adversary at risk. This is the weaker account of the concept. The stricter account of a prima facie case is that it is proof sufficient to discharge the onus resting upon a party, absent evidence in rebuttal.” Unterhalter (n 1) 549.
[36]Panel Report, US – Shrimp (Ecuador), WT/DS335/R, n 33, para. 7.9.
[37]The Panel also pointed out in its report in US – Stainless Steel that the fact that the United States does
not contest Mexico's contention does not discharge Mexico of its obligation to make a prima facie case and in EC – Bananas (Article 21.5 – Ecuador II) that it will consider the arguments and evidence presented by Ecuador in order to determine whether they are sufficient to establish a prima facie case even the European Communities has chosen not to contest Ecuador's claim. Furthermore, in EC – Bananas (Article 21.5 – Ecuador II), the Panel stated that:
As in the case of the previous preliminary objection raised by the European Communities, the Panel will assess first whether the European Communities has made a prima facie case supporting its contention. If such a prima facie case was found to exist, the Panel would turn to assessing whether the United States has succeeded in rebutting this preliminary objection by the European Communities. Alternatively, if the Panel found that the European Communities has not succeeded in making a prima facie case that the complaint of the United States falls outside of the scope of Article 21.5 of the DSU, the Panel would reject this preliminary objection by the European Communities without further analysis.
Later on, the Panel continued to analyze in the same case that:
[T]he European Communities has chosen not to contest the United States' claim … the Panel will nevertheless consider the arguments and evidence presented by the United States, in order to determine whether they are sufficient to establish a prima facie case of inconsistency with Article I of the GATT 1994. If this were determined to be the case, the Panel would then turn to assessing whether the European Communities has made a prima facie case ….
Moreover, the similar analysis also took place in US – Continued Zeroing, in its report, the Panel said:
[I]t is for the complaining Member to make a prima facie case with regard to a claim that it asserts, before the burden shifts to the defendant to rebut such case. The United States does not contest the EC's claim under Article 2.4.2 against model zeroing in investigations. In our view, however, the US acknowledgement does not discharge the European Communities from its obligation to present a prima facie case regarding the alleged inconsistency with Article 2.4.2 of the Agreement of model zeroing in investigations. Regardless of the US acknowledgement, therefore, we have to assess whether the EC's arguments are sufficient to make a prima facie case.
[38]Unterhalter (n 1) 547.
[39]Ibid, 549.
[40]James Headen Pfitzer and Sheila Sabune (n 3) 8.
[41]The Panel in Thailand – H-Beams noted the principles that the complainant must present a prima facie case, and the respondent must effectively refute those claims. The Panel's statements was upheld by the Appellate Body, and well recognized later. Furthermore, the Appellate Body in Canada – Dairy (Article 21.5 – New Zealand and US II) said that:
[W]e 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 …they reflect a ‘canon of evidence’ accepted and applied in international proceedings.
[42]It seemingly like the notion of “duty of passing the judge” known in common law. However, it can be kept in mind that it is nothing more than informal meaning in WTO dispute settlement practice for the uniqueness of WTO dispute settlement mechanism.
[43]Panel Report, Canada – Aircraft, WT/DS70/R, adopted 20 August 1999, para. 9.87.
[44]Appellate Body Report, India – Quantitative Restrictions, WT/DS90/AB/R, adopted 22 September 1999, para. 142.
[45]Appellate Body Report, Korea – Dairy, WT/DS98/AB/R, adopted 12 January 2000, para. 145.
[46]Appellate Body Report, Thailand – H-Beams, WT/DS122/AB/R, adopted 5 April 2001, para. 134.
[47]Taniguchi (n 6) 570.
[48]James Headen Pfitzer and Sheila Sabune (n 3) 14.
[49]Taniguchi (n 6) 568.
[50]Unterhalter (n 1) 551.
[51]See Barceló III (n 8) 36.
[52]James Headen Pfitzer and Sheila Sabune (n 3) 14.
[53]Of course, the objective of the author, by no means, is not to defend for the practice of both panels and the Appellate Body, and he is not of the position that the ambiguity of the practice of the WTO dispute settlement in this regard can be solve by the doctrine of Chinese law.
[54]See James Headen Pfitzer and Sheila Sabune (n 3).
[55]Taniguchi (n 6) 572.