Wto Dispute Settlement Evidence In The Mechanism Study

Evidence plays an important role in the WTO dispute settlement, however, the existing understanding and study thereof are insufficient and practical summary is faulted. This paper takes the fundamental principle and theory of domestic evidence law, combines with the legal texts of the WTO and bases on the practices of the WTO dispute settlement, and exploits comprehensively multiple study methods, such as comparative analysis, case study, normative analysis, to intend to comb comprehensively and systematically issues governing evidence in the WTO dispute settlement mechanism, explore and clarify the abundant thoughts of evidence law, promote further study and theoretical construction and innovation of the WTO dispute settlement, especially the WTO evidence law, learn, understand and use the WTO dispute settlement mechanism better, serve for domestic economic and trade benefits, and provide some preliminary theories for more free, open and fare multilateral trading system.This paper comprises five parts besides the preface. They observes respectively international dispute settlement and evidence, the WTO evidence law, panel in the context of the WTO evidence law, evidence in appellate procedure, and summary of the current WTO evidence law and perspective of its evolution.Part I International Dispute Settlement and EvidenceThis part examines concisely the general status and role of evidence in dispute settlement, international dispute settlement and the WTO dispute settlement in accordance with the logical order of evidence and dispute settlement, evidence in international dispute settlement and the WTO dispute settlement, and construct an appropriate cornerstone for the next discourse.Part II the WTO Evidence LawThis part is the core and concentration of this paper. It analyzes one by one the system of the WTO evidence law which consists of legal sources, general principles, basic evidentiary issues and burden of proof and so on, and attempt to explore thoughts of evidence law and theory in the WTO dispute settlement mechanism, perfect and systematize further the WTO evidence law which as a part of the WTO law system.About legal sources of the WTO evidence law, this paper considers that provides concerning evidence in the WTO procedural rules that their primary contents are DSU and in the WTO substantial rules that their primary contents are the covered agreements of the WTO construct the fundamental legal sources of the WTO evidence law, and customary practices and evidentiary usages established in panel/appellate body reports adopted, general principle and rationale of evidence law, and evidence rules of other international judicial and quasi-judicial bodies construct the supplementary sources of the WTO evidence law.As refer to general principles of the WTO evidence law, the author put forward and explores firstly the principle of due process, the principle of transparency, the discretionary principle, the objective principle, the principle of good faith and the principle of wide-ranging based on the definition of the general principle of the WTO evidence law.Regarding the basic issues of the WTO evidence law, this paper starts from the concept of evidence, analyzes specifically several issues such as information and materials which may as evidence, form and type of evidence, subject of evidence, deadline for submitting evidence and new evidence, probative force of evidence, admission and acceptance of evidence and amicus curiae briefs and so on. It believes that the concept of evidence is wide in the WTO evidence law, we may treat evidence as the same as evidentiary materials which are wide also. There are no explicit requirements with respect to form and type of evidence and few restriction about them. Requirement of subject of evidence is loose in the WTO evidence law. To some extent, the decisive authority governing the qualification of subject of evidence is controlled by panel. Panel enjoys great discretionary authority in the WTO evidence law because there are no unified and clear evidence rules. The clarification and establishment of relevant rules of evidence considerably rest upon the evolution of the dispute settlement practices. At the end of this section, the author studies amicus curiae briefs from the perspective of evidence law and proposes the distinctive point of view.Burden of proof is the gravity of the WTO evidence law. The manifestation is very clear in the WTO dispute settlement practices. To some extent, we even may say that the WTO evidence law is emerging because of burden of proof. Burden of proof is also the hotspot and hard nut in the current study of the WTO evidence law. First, this section observes the concept of burden of proof, then examines the general thereof, burden of proof of defences and exceptions, allocation and shift of burden of proof, reversal of burden of proof, particular circumstance in burden of proof, collaborative obligations in burden of proof and prime facie case based on the principle of domestic evidence law, the WTO jurisprudence and plentiful WTO dispute settlement practices. It holds that burden of proof in the WTO evidence law still is adherent to the general principle of "actori incumbit onus probandi", and it has its own characteristics at the same time. Allocation and shift of burden of proof may vary from case to case; it emphasizes collaborative obligations and introduces effectively "prima facie case" from Anglo-Saxon legal system. According to the above-mentioned discussions, this section aims to establish a comprehensive tree-structure of burden of proof in the WTO evidence law.Part III Panel in the Context of the WTO Evidence LawAs to the role of panel in the WTO evidence law, this part firstly examines panel's duty to objectively assess facts, right to seek information and discretion of evaluating evidence which provided by DSU explicitly. Based on them, this part thinks that panel is the focus of the WTO dispute settlement. As "preliminary judge" and "judge of facts", panel plays a significant role in the WTO evidence law and stands on the status that the terminal judge de facto in the application of the WTO evidence law. This point is substantiated by the dispute settlement practices and accepted broadly by WTO members. Part IV Evidence in Appellate ReviewConcerning evidence in appellate procedures, this part considers that although appellate body is bound to authority, opportunities thereof to deal with evidentiary matters may be limited, but in fact, the most—if not all—of evidentiary matters which posed to the front of panel may demonstrate before appellate body in the form of legal issues or legal interpretations in the framework of the WTO evidence law. In general, appellate body stresses on upholding and reinforcing panel's authority of the terminal judge in the WTO evidence law instead of restricting or undermining it.Part V Summary and PerspectiveIn this part, the author generalizes the fundamental view and proposition of this paper, and put forward that the legal texts of the WTO and dispute settlement practices embody systematical, plentiful and distinctive evidence system: the WTO evidence law, though there is no specific unified evidence norm or evidence agreement in the legal texts of the WTO. The WTO evidence law regime at least includes principles, rules and institutions in respect of evidentiary issues in the WTO dispute settlement as follows: legal sources of the WTO evidence law, general principles of the WTO evidence law, basic issues of the WTO evidence law, burden of proof and so on. And panel and appellate body play respectively significant role in the running of the WTO evidence law. At last, this part looks forward to the development of the WTO evidence law from the evolutionary macro-background of international relations and international law, perfects of modern evidence law and the WTO law system, needs of the WTO dispute settlement practices and new urgent requirements which imposed on the extensive development and study by the reality of emerging economy and trade in our country.