Working Paper Series
Burden of Proof in Environmental Disputes in the WTO: Legal Aspects
() and Petros C. Mavroidis
Abstract: This paper discusses allocation of burden of proof in
environmental disputes in the WTO system. Besides laying down the natural
principles that (i) the complainant carries the burden to (ii) make a prima
facie case that its claim holds, WTO adjudicating bodies have said little
of more general nature. The paper therefore examines the case law of
relevance to environmental policies, to establish the rules concerning
burden of proof that are likely to be applied in such disputes. Evaluating
this case law, the paper makes two observations,: First, in cases submitted
under the GATTWTO, adjudicating bodies have committed errors regarding the
required amount of evidence (the burden of persuasion); and second, such
errors, as well as errors concerning the determination of the party to
carry the burden of providing this evidence (the burden of production),
have been committed in disputes submitted under the TBT/SPS Agreements.
These errors largely seem attributable to the general absence of
methodology regarding the interpretation of some key substantive provisions
featuring in the three Agreements.
Keywords: Burden of Proof; Burden of Production; Burden of Persuasion; WTO; Environment; (follow links to similar papers)
JEL-Codes: F13; Q56; (follow links to similar papers)
86 pages, March 13, 2009
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- This paper is published as:
Horn, Henrik and Petros C. Mavroidis, (2009), 'Burden of Proof in Environmental Disputes in the WTO: Legal Aspects', European Energy and Environmental Law Review, Vol. 18, No. 2, pages 1-1
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