Preliminary Issues in WTO Safeguards Disputes: Burden of Proof, Standard of Review, and the “Record” (2025)

The WTO Agreement on Safeguards: A Commentary

Alan O Sykes

Published:

2006

Online ISBN:

9780191773372

Print ISBN:

9780199277407

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The WTO Agreement on Safeguards: A Commentary

Alan O Sykes

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Pages

73–84

  • Published:

    September 2006

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Sykes, Alan O, 'Preliminary Issues in WTO Safeguards Disputes: Burden of Proof, Standard of Review, and the “Record”', The WTO Agreement on Safeguards: A Commentary, Oxford Commentaries on GATT/WTO Agreements (2006; online edn, Oxford Academic), https://doi.org/10.1093/law/9780199277407.003.0003, accessed 17 Aug. 2024.

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Like all legal systems, the WTO dispute resolution system must confront a number of procedural issues, as well as quasi-procedural questions such as what standard of review to apply in deciding whether the decisions of national authorities comply with WTO law. A complete discussion of these issues is beyond the scope of this book, but it is useful to address a few important principles that routinely have an impact on WTO safeguards disputes.

The Burden of Proof

Legal systems commonly place the “burden of proof” on the party that puts forward a claim. The burden of proof is conceptually important in close cases—if the adjudicator finds the evidence on both sides in equipoise, the party with the burden of proof will lose. Further, the burden of proof is frequently coupled with a burden to come forward with evidence, sometimes known as a burden of production. Unless the party putting forward a claim also produces evidence to support it, the responding party may say nothing and still prevail.

Keywords: World Trade Organization, Safeguards, Tariffs, National treatment, Subsidies, Specific trade agreements, Fact-finding and inquiry, Burden of proof, Anti-dumping, Standard of review

Subject

International Economic Law Arbitration Law of Treaties Settlement of Disputes International Trade Economic Development

Series

Oxford Commentaries on GATT/WTO Agreements

Collection: Oxford Scholarly Authorities on International Law

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