WTO Dispute Settlement Mechanism(6)/刘成伟(11)
And in Japan – Film (DS44), the Panel confirms the rule on burden of proof in the context of non-violation complaints under Art. XXIII:1(b): “Consistent with the explicit terms of the DSU and established WTO/GATT jurisprudence, and recalling the Appellate Body ruling that ‘precisely how much and precisely what kind of evidence will be required to establish ... a presumption will necessarily vary from ... provision to provision’, we thus consider that the United States [the complaining party], with respect to its claim of non-violation nullification or impairment under Article XXIII:1(b), bears the burden of providing a detailed justification for its claim in order to establish a presumption that what is claimed is true. It will be for Japan [the defendant] to rebut any such presumption.” 11
(iv) Summary and Conclusions
To sum up, in the context of violation complaints under Art. XXIII:1(a) of the GATT 1994, as ruled by the Panel in Turkey-Textile and Clothing Products (DS34): “The rules on burden of proof are now well established in the WTO and can be summed up as follows: (a) it is for the complaining party to establish the violation it alleges; (b) it is for the party invoking an exception or an affirmative defense to prove that the conditions contained therein are met; and (c) it is for the party asserting a fact to prove it.” 12
总共54页
[1] [2] [3] [4] [5] [6] [7] [8] [9] [10] 11
[12] [13] [14] [15] [16] [17] [18] [19] [20] [21] [22] [23] [24] [25] [26] [27] [28] [29] [30] [31] [32] [33] [34] [35] [36] [37] [38] [39] [40] [41] [42] [43] [44] [45] [46] [47] [48] [49] [50] [51] [52] [53] [54] 上一页 下一页