WTO분쟁해결절차의 입증책임, 일응타당 사건 및 추정

WTO Appellate Body's concepts and terminology concerning a claimant's burden of proof, prima facie case, presumption, and burden shifting are disturbingly ambiguous and potentially misleading. An important task for future AB decisions should be to clarify the existing ambiguity and to develop a more conceptually sound use of burden of proof terminology. The WTO system fundamentally puts the burden of persuasion on the complaining member as to its basic claim of a WTO violation and does not shoft this burden during the course of the proceeding. We can refer how these concepts would be understood in common law and civil law systems. A future panel might employ the AB's burden of proof language to impose an excessive burden of proof on the complaining member. This excessive burden could result the panel to require a claimant to make such a strong case that the claimant simply must win if the respondent does not rebut. Conversely, the AB's terminology could mislead a future panel into requiring too much from a respondent. If a future panel reads prima facie, as the term implies, as requiring that a claimant's case meet a minimum threshold of plausibility thet would justify but nit require a decision in the claimant's flavor, such a weak prima case should not shift the burden of proof to the respondent. The AB could abandon altogether the concepts of prima facie and presumption which seems to be the preferable choice. Then the AB's future decisions could articulate that more clearly, claifying the confusing discussion of presumption that shifts an “onus” to the respondent.