Allocating the Burden of Proof in WTO Dispute Settlement Proceedings

摘要

The allocation of the burden of proof is not responsive to reductionist reasoning. The formal features of the relationship between rules and exceptions do not provide a clear basis to develop a general rule regarding the allocation of the burden of proof. Narrow textual analysis does not provide an answer either. Rather, the allocation is responsive to more wide-ranging reasoning.rnThe typology of the Appellate Body is shorthand for certain kinds of reasoning about the allocation of the burden of proof. So understood, the typology of the Appellate Body serves not so much to determine when a provision captures a rule-exception relationship, because this relationship is a feature of rules that, with varying degrees of specificity, determines the basis of their application.