Allocating the burden of proof in WTO disputes: A critical analysis

This article argues that the World Trade Organization (WTO) jurisprudence on the allocation of the burden of proof is in a confused state. Panels and the Appellate Body have failed to produce a consistent line of cases, which can be used as a predictable model to solve future cases. Furthermore, the jurisprudence has also created artificial differences between similar provisions, raising questions about the relevance of the criteria employed to distinguish provisions that must be proved by the defendant from those that must be proved by the complainant. The analysis undertaken in this article suggests that it may be time to reflect upon the basic question of why the burden of proof should be allocated to a given party. The article explores alternatives and suggests courses of action.