7.18 In particular, having determined the role of the panel as part (a) of our analysis, to reach a
conclusion in this dispute we consider it necessary to (b) determine the burden of proof to be
discharged by the complainant; (c) evaluate whether the complainant has established that the
United States used "zeroing" in the measures at issue; (d) consider whether the complainant has
established that the "zeroing" methodology used by the United States is the same as the methodology
reviewed in a "consistent line of Appellate Body Reports", including US – Softwood Lumber V; and
(e) find whether or not the complainant has established that the United States acted inconsistently with
Article 2.4.2 of the Anti-Dumping Agreement.
(b) Burden of Proof
7.19 We note that in US – Shrimp (Ecuador), the panel made the following findings regarding
burden of proof and that this reasoning was adopted by the panels in US – Shrimp (Thailand) and US
– Anti-Dumping Measures on PET Bags:
"Because of its singularity, this dispute raises in a particularly acute fashion the issue
of the burden of proof.
The burden of proof lies, in WTO dispute settlement proceedings, with the party that
asserts the affirmative of a particular claim or defence. Ecuador, as the complaining
party, must therefore make a prima facie case of violation of the relevant provisions
of the relevant WTO agreements. The burden would then shift to the responding party
(here the United States), to adduce evidence to rebut the presumption that Ecuador's
assertions are true. In this context, we recall that 'a prima facie case is one which, in
the absence of effective refutation by the defending party, requires a panel, as a
matter of law, to rule in favour of the complaining party presenting the prima facie
case'.
In our view, the issue of the burden of proof is of particular importance in this case.
This is because Ecuador has made factual and legal claims before the Panel which the
United States does not contest. Yet, the fact that the United States does not contest
Ecuador's claims is not a sufficient basis for us to summarily conclude that Ecuador's
claims are well-founded. Rather, we can only rule in favour of Ecuador if we are
satisfied that Ecuador has made a prima facie case. We take note in this regard that
the Appellate Body has cautioned panels against ruling on a claim before the party
bearing the burden of proof has made a prima facie case. In EC – Hormones, the
Appellate Body ruled that the Panel erred in law when it absolved the complaining
parties from the necessity of establishing a prima facie case and shifted the burden of
proof to the responding party:
'In accordance with our ruling in United States – Shirts and Blouses,
the Panel should have begun the analysis of each legal provision by
examining whether the United States and Canada had presented
evidence and legal arguments sufficient to demonstrate that the EC
measures were inconsistent with the obligations assumed by the
European Communities under each Article of the SPS Agreement
addressed by the Panel .... Only after such a prima facie
determination had been made by the Panel may the onus be shifted to
the European Communities to bring forward evidence and arguments 7.18 In particular, having determined the role of the panel as part (a) of our analysis, to reach a
conclusion in this dispute we consider it necessary to (b) determine the burden of proof to be
discharged by the complainant; (c) evaluate whether the complainant has established that the
United States used "zeroing" in the measures at issue; (d) consider whether the complainant has
established that the "zeroing" methodology used by the United States is the same as the methodology
reviewed in a "consistent line of Appellate Body Reports", including US – Softwood Lumber V; and
(e) find whether or not the complainant has established that the United States acted inconsistently with
Article 2.4.2 of the Anti-Dumping Agreement.
(b) Burden of Proof
7.19 We note that in US – Shrimp (Ecuador), the panel made the following findings regarding
burden of proof and that this reasoning was adopted by the panels in US – Shrimp (Thailand) and US
– Anti-Dumping Measures on PET Bags:
"Because of its singularity, this dispute raises in a particularly acute fashion the issue
of the burden of proof.
The burden of proof lies, in WTO dispute settlement proceedings, with the party that
asserts the affirmative of a particular claim or defence. Ecuador, as the complaining
party, must therefore make a prima facie case of violation of the relevant provisions
of the relevant WTO agreements. The burden would then shift to the responding party
(here the United States), to adduce evidence to rebut the presumption that Ecuador's
assertions are true. In this context, we recall that 'a prima facie case is one which, in
the absence of effective refutation by the defending party, requires a panel, as a
matter of law, to rule in favour of the complaining party presenting the prima facie
case'.
In our view, the issue of the burden of proof is of particular importance in this case.
This is because Ecuador has made factual and legal claims before the Panel which the
United States does not contest. Yet, the fact that the United States does not contest
Ecuador's claims is not a sufficient basis for us to summarily conclude that Ecuador's
claims are well-founded. Rather, we can only rule in favour of Ecuador if we are
satisfied that Ecuador has made a prima facie case. We take note in this regard that
the Appellate Body has cautioned panels against ruling on a claim before the party
bearing the burden of proof has made a prima facie case. In EC – Hormones, the
Appellate Body ruled that the Panel erred in law when it absolved the complaining
parties from the necessity of establishing a prima facie case and shifted the burden of
proof to the responding party:
'In accordance with our ruling in United States – Shirts and Blouses,
the Panel should have begun the analysis of each legal provision by
examining whether the United States and Canada had presented
evidence and legal arguments sufficient to demonstrate that the EC
measures were inconsistent with the obligations assumed by the
European Communities under each Article of the SPS Agreement
addressed by the Panel .... Only after such a prima facie
determination had been made by the Panel may the onus be shifted to
the European Communities to bring forward evidence and argument to disprove the complaining party's claim.