earticle

영어

Burden of proof pertains to legal issues in the disputes, thus the parties can not come to a decision with respect to the bearing party. It is essential subject matter in the domestic and international legal systems. The significance of burden of proof came from its concept that tells us which party (complainant or defendant) in a case must provide proof of a determinate issue at the risk of having the adjudicator rule against it with respect to that issue. The issue of the burden of proof in domestic legal systems is affirmatively stilled. Nonetheless, in the international law still unresolved issue, i.e. the judicial bodies in the international law enjoy the extreme freedom to appoint what is admissible as evidence and also which party bears the burden of proof. WTO dispute settlement bodies toke the position of the international tribunal. Consequently, the Appellate Body and the panel can appoint the bearing party of the burden of proof. In the WTO disputes the Appellate Body stated specific doctrine in order to allocate the burden of proof among the disputing parties. The burden of proof in safeguard measure disputes is inconsistent with the established doctrine in the WTO disputes generally. Moreover, the allocation of burden of proof in GATT panel practices regarding the safeguard measures disputes differs from the recent one under the WTO regime. The characteristics of safeguard measures require special allocation of burden of proof, i.e. the claimant has several difficulties to prove his claim since the data and confidential information in the possession of the seeking party (respondent). The standard of proof in the safeguard measures disputes varies from case to case which constitutes an instability that threats the reliability and predictability of safeguard measures in WTO.