WTO Cases • Volume 12 • Number 2 • March 2008

Burden-shifting in WTO Dispute Settlement: The Prima Facie Doctrine

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The burden of proof in dispute settlement has been referred to as a legal response to ignorance. However, clarification is necessary to establish what constitutes the ‘prima facie’ evidence that allows a dispute to go forward under WTO jurisprudence.

While the notion of prima facie (often translated as ‘on the face of it’) is a standard of evidence without a fixed definition, international tribunals have characterised it as evidence that “unexplained or uncontradicted is sufficient to maintain the proposition affirmed.”1

Under WTO jurisprudence, a complainant that is unable to pass the prima facie test runs the risk of failure.

Lawyers with a background in common law find this fact troubling since WTO panels are not confined to considering only the factual record presented by parties. (Under Article 13 of the Dispute Settlement Understanding, panels may seek information from anywhere they deem appropriate to supplement evidence provided by the parties. This is also the practice of civil law courts and most international tribunals).

The Prima Facie Standard and Burden of Proof within the WTO

‘Burden-shifting’ refers to the point in legal proceedings when a court has completed its analysis of whether the challenger has presented enough evidence to warrant a case and starts to consider counterclaims presented by the defendant and, possibly, other parties with an interest in the dispute.

The WTO Appellate Body (AB) first addressed this issue in its 1997 report on US – Shirts and Blouses (WT/DS33/AB/R). That ruling confirmed the original GATT practice regarding the allocation of burden of proof: the complaining party must establish the violation it alleges before a panel can start consideration of evidence presented by any other parties.

The 1998 Appellate Body report on EC – Hormones (WT/DS26/AB/R) clarified that this standard was to be applied to all WTO disputes. The AB emphasised that the burden of proof could shift only once the panel had conducted an analysis to determine that the complaining party had met the requisite prima facie standard. It further noted that the defending party’s ability to refute evidence presented by the claimant should have no effect on the initial determination of whether the complainant was able to satisfy the prima facie standard.

What Evidence Should Be Considered?

The Dispute Settlement Understanding (DSU) does not contain an explicit standard of review of what constitutes prima facie evidence. In EC-Hormones, the AB explained that “the issue of failure to apply an appropriate standard of review […] resolves itself to the issue of whether or not the panel […] made an objective assessment of the facts.’’ While this language is consistent with DSU Article 11, the task of developing the jurisprudence for its implementation has been left to the Appellate Body.

However, AB rulings have been far from consistent with respect to exactly what evidence should be considered by a panel in deciding whether a prima facie case has indeed been presented.

For instance, in February 1999 the Appellate Body applied the US – Shirts and Blouses burden-shifting approach in Japan – Measures Affecting Agriculture Products (WT/DS76/AB/R). It would be an abuse of authority for a panel to investigate under its own initiative and then proceed to rule in favour of a complaining party that had failed to establish a prima facie case, the AB stated. This ruling clearly limits the evidence that panels may consider during the prima facie analysis to that provided by the complainant.

Only months later, however, the Appellate Body directly reversed itself with respect to the evidence a panel should take into account in its prima facie determination. In Canada – Measures Affecting the Export of Civilian Aircraft , it ruled that a panel was free to request and consider information from parties or anyone else. In particular, the AB specified that the panel was under no obligation to wait until the complaining party had presented a prima facie case before conducting its own investigation. The Appellate Body further explained that outside information might indeed be necessary to determine whether the complaining party had presented a prima facie case. This view was reiterated in the Appellate Body’s 2006 report on US – Zeroing .

And yet, in its 2005 ruling on US – Gambling (WT/DS285/AB/R), the Appellate Body had reverted to its original position that a panel should be satisfied that the complainant had established a prima facie case before considering other evidence, such as a defendant’s rebuttal. In other words, a panel should refrain from further proceedings on a claim for which the complaining party has failed to make a prima facie case.

In light of such contradictions, it is not clear how a panel should conduct its prima facie analysis. Would it be justified in simultaneously considering outside evidence and argumentation presented by both parties, as advocated by the Appellate Body in Zeroing and Aircraft? Or should a panel limit itself to considering only evidence proffered by the complainant, as laid out in Shirts, Hormones and advanced in Gambling? Clarification is necessary.

Sheila Sabune is Trade in Services and Dispute Settlement Programme Officer at ICTSD. James Headen Pfitzer is Legal Technical Officer at the World Health Organisation in Geneva.