WTO争端解决程序中的举证责任

世界贸易组织的相关协议对争端解决程序中的举证责任几乎没有规定,相关举证责任规则是由处理争端的专家组和上诉机构发展起来的。在世界贸易组织争端解决程序中,谁主张谁举证是举证责任规则的基本要求,其标准是初步证明(证据)标准,这种标准实质上是一种推定技巧,而非终局的证明标准。提供充分的证据并说服专家组是举证责任的内在要求。不同诉因、不同条款可能影响争端方举证责任的分配。争端方是否满足了举证责任的要求,由专家组最终评估、认定,专家组在这方面享有相当大的裁量权。

Burden of Proof in WTO Dispute Settlement

No stipulation of burden of proof in dispute settlement can be found in the agreements of WTO. Rather, the rules of burden of proof are developed by the Panels and the Appellate Body. In settling disputes between WTO members, a fundamental rule is that the party who makes an allegation shall bear the duty to produce evidence to substantiate it. The test of the evidence produced is a prima facie case, which is, in essence, a sort of constructive evidence rather than a conclusive one. The inherent requirement of burden of proof lies in producing sufficient evidence and persuading the Panel. The variation of causes of action and difference of provisions may have impact on the issue that which party shall bear the burden of proof. Panels have discretion and final say in deciding whether the party has substantiated the allegation.