scholarly journals The burden and order of proof in WTO claims: evolving issues

2017 ◽  
Vol 59 (6) ◽  
pp. 1220-1235
Author(s):  
Zeina Ahmad ◽  
Bashar H. Malkawi
Keyword(s):  
Dispute Settlement ◽  
Burden Of Proof ◽  
Prima Facie ◽  
Dispute Settlement Mechanism ◽  
Prima Facie Case ◽  
Content Type ◽  
Wto Dispute Settlement ◽  
The World ◽  
The Subject ◽  
Evidence And Proof

Purpose The World Trade Organization (WTO) is one of the best dispute settlement mechanisms in the world. Under WTO rules, aggrieved parties must establish a “prima facie” case before the panel can call on the offending party to respond to the claims. The objective of the present study is to critically evaluate the application of the concept of burden of proof under WTO dispute settlement mechanism. Design/methodology/approach The paper examines the rule of “prima facie” in WTO jurisprudence. To do so, the first part will focus on the development of dispute settlement within WTO. The second part is divided into several subsections that will focus on the burden of proof concept, burden of proof in common law, burden of proof in civil law and the prima facie standard. Findings The DSU does not explicitly regulate how to allocate the burden of proof, but panels and the AB needed to address that issue early in their history. Despite this, all aggrieved parties to establish a prima facie case before the case can become the subject of a panel hearing. There is a need to adopt a burden of proof standard that assesses evidence on the basis of preponderance of the available evidence rather than on the basis of a party’s failure to adduce evidence to back up or dispute a claim. Originality/value The paper is an attempt to address an important issue on the presentation of evidence and proof in international litigation, i.e. WTO.

US–China trade war and the WTO dispute settlement mechanism

2019 ◽  
Vol 18 (3) ◽  
pp. 125-135
Author(s):  
Tolulope Anthony Adekola
Keyword(s):  
Dispute Settlement ◽  
Economic Losses ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Content Type ◽  
China Trade ◽  
Wto Dispute Settlement ◽  
The Usa ◽  
Trade War ◽  
Desk Review

Purpose The paper is prompted by the US–China trade war and its implications for the sustenance of the multilateral trading system. The two rivals resorted to “self-help” without recourse to the World Trade Organization (WTO) dispute settlement system, flouting the WTO as an adjudicator in trade disputes. This paper aims to analyze the drawbacks in the settlement system and examines the urgent need for a retroactive remedy. Design/methodology/approach This paper adopts desk-review and jurisprudential analysis of the relevant rulings of the WTO dispute settlement body. Using desk-review, primary sources such as the relevant domestic legislations invoked by the USA and China to trigger the trade war were discussed and critically analyzed. Findings This paper finds that the unilateral and protectionist actions that characterize the trade war can be linked to the loss of confidence in WTO remedies to redress members’ retroactive economic losses. This finding is useful in arguing for the incorporation of a retrospective monetary remedy to forestall the reoccurrence of a similar trade war and save the WTO from being dysfunctional. Originality/value Although, whether there should be retroactive remedies in the settlement system has been long debated, this paper makes a significant contribution by highlighting why the drawbacks in the settlement system have become so prominent in the context of this trade war. This paper strengthens the urgent need for WTO dispute settlement reform to prevent a reoccurrence of another global distortion of trade.

scholarly journals An Empirical Study of China's Participation in the WTO Dispute Settlement Mechanism: 2001-2010

2011 ◽  
Vol 4 (1) ◽  
pp. 218-246 ◽  
Author(s):  
Wei Zhuang
Keyword(s):  
World Trade ◽  
Dispute Settlement ◽  
Comprehensive Analysis ◽  
Third Party ◽  
Dispute Settlement Mechanism ◽  
Settlement System ◽  
Wto Dispute Settlement ◽  
The World ◽  
Dispute Settlement System ◽  
Settlement Mechanism

On 11 December 2001, China officially became a Member of the World Trade Organization (WTO) after years of negotiations. The paper shows how a major developing country has used the WTO dispute settlement system by examining China’s participation in the WTO dispute settlement mechanism from its entry through 31 December 2010. It provides a comprehensive analysis of the WTO dispute cases in which China has participated as a complainant, a respondent, or a third party.

scholarly journals POSISI, TANTANGAN, DAN PROSPEK BAGI INDONESIA DALAM SISTEM PENYELESAIAN SENGKETA WTO

2017 ◽  
Vol 3 (1) ◽  
pp. 92
Author(s):  
Dyan F. D. Sitanggang
Keyword(s):  
World Trade Organization ◽  
World Trade ◽  
Dispute Settlement ◽  
National Interest ◽  
Global Trade ◽  
Dispute Settlement Mechanism ◽  
Wto Dispute Settlement ◽  
The World ◽  
Final Settlement ◽  
Settlement Mechanism

<p><em>The World Trade Organization (WTO) as the sole universal organization managing global trade between member-states has develop a dispute settlement mechanism to deal with disagreement related to the interpretation and/or implementation of reciprocal rights and duties in the economic field. However, the effectiveness of this system hinges on compliance of states to decisions reached.  Compliance in its turn are influenced by how parties to a dispute value the justness or equity of the final settlement.  This paper discusses WTO Dispute Settlement Understanding (DSU) and how Indonesia perceived and utilizes this forum to further its national interest.</em></p>

Revisiting African States Participation in the WTO Dispute Settlement through Intra-Africa RTA Dispute Settlement

2013 ◽  
Vol 6 (2) ◽  
Author(s):  
Malebakeng Forere
Keyword(s):  
Developing Countries ◽  
Dispute Settlement ◽  
Developed Countries ◽  
Dispute Settlement Mechanism ◽  
East African ◽  
African Countries ◽  
Trade Disputes ◽  
East African Community ◽  
Wto Dispute Settlement ◽  
Southern Africa Development Community

AbstractWhereas developed countries were the main players in the GATT dispute settlement mechanism, the era of the WTO saw a sharp increase in the developing countries’ participation in trade disputes. Thus, developing countries are active complainants and defendants in the WTO dispute settlement processes. Nevertheless, African states are still marginalised, and this situation has attracted attention of many scholars. As a result, scholars in the field have come up with many reasons to explain why African states do not appear as either complainants or respondents. The reasons for Africa’s non-participation have been argued to include cost of WTO litigation relative to the gains, low trade volumes, legal knowledge and non-integration of African countries in the WTO system. This article seeks to contribute to the existing literature on Africa’s non-participation in the WTO dispute settlement. The goal in this article is to confirm or dispel assumptions that African states have interests that they need to safeguard through dispute settlement but are inhibited from doing so because of the reasons mentioned above. Unlike other studies, the determination on Africa’s non-participation in the WTO dispute settlement will be approached from African states’ participation in intra-Africa RTA dispute settlement mechanisms. While there are six intra-Africa RTAs notified to the WTO, this work focuses on only two – East African Community and Southern Africa Development Community.

scholarly journals Can WTO Member States Rely on Citizen Concerns to Prevent Corporations from Importing Goods Made from Child Labour?

2018 ◽  
Author(s):  
Aleydis Nissen
Keyword(s):  
World Trade ◽  
Dispute Settlement ◽  
Case Law ◽  
Child Labour ◽  
Global Supply Chains ◽  
Corporate Accountability ◽  
Dispute Settlement Mechanism ◽  
The World ◽  
Import Restrictions ◽  
Settlement Mechanism

There has been a polarised debate on the desirability of import restrictions to increase corporate accountability for child labour that occurs in global supply chains. Some scholars have indicated that states in favour of imposing import restrictions could sidestep this debate relying upon the perceptions that people in the importing market might have. They have based this argument on the case law of the World Trade Organization’s Dispute Settlement Mechanism (WTO DSM). The attitude-behaviour gap has, however, been largely overlooked in their analyses. This behavioural phenomenon provides an explanation as to why there is an inconsistency between what people value or believe and what they actually do. This essay revisits the WTO DSM's case law in order to determine whether such values or beliefs might justify import restrictions. On balance, this essay finds that the WTO DSM has not sufficiently taken the attitude-behaviour gap into account in its interpretation of Article III(4) and Article XX(a) 1994 General Agreement on Tariffs and Trade (GATT).

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