The European Journal of International Law Vol. 20 no. 3 © EJIL 2009; all rights reserved
Of the World Trade Court's Burden
* Associate Professor of Law, Norman and Edna Freehling Scholar, Chicago-Kent College of Law, Illinois Institute of Technology. Email: Scho1{at}kentlaw.edu
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Abstract |
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This article argues that in adjudicating sensitive disputes, such as those concerning human health, the WTO tribunal (Court) acts as a Dworkinian Hercules which provides its own answers on risks and science. In judging which party should win the case, this Hercules assesses parties’ arguments and evidence on risks and regulatory responses through a technical rule labelled the ‘burden of proof’ (BOP). Yet the BOP is more the Court's burden than parties’ burden (who to prove) in that the final outcome of the case hinges eventually on those elements which the Court requires parties to prove (what to prove), as well as whether the Court approves that a party has discharged its BOP and allows the burden to shift to the other party (whether to prove). As long as the Court plays the role of Hercules by handing down substantive justice on issues of high controversy, such as risks and science, whatever decision it makes will hardly satisfy the parties concerned, and thus will never fully resolve their disputes. If the Court's own answer (substantive justice) cannot put an end to parties’ antimonial struggle, the Court should contemplate guiding parties to discover the solution between them via constructive regulatory dialogue. The Court can achieve this new goal by transforming its current substantive hermeneutics over the BOP into a ‘procedural’ one. The Court's new interpretation can reoperationalize the BOP in a way that brings out certain important administrative law elements, such as transparency and reason-giving, embedded in major SPS obligations such as risk assessment.