More recently, in US – Gambling, the Appellate Body indicated that "[a] panel errs
when it rules on a claim for which the complaining party has failed to make a prima
facie case", and noted that:
'A prima facie case must be based on "evidence and legal argument"
put forward by the complaining party in relation to each of the
elements of the claim. A complaining party may not simply submit
evidence and expect the panel to divine from it a claim of WTO
inconsistency. Nor may a complaining party simply allege facts
without relating them to its legal arguments.
In the context of the sufficiency of panel requests under Article 6.2 of
the DSU, the Appellate Body has found that a panel request:
... must plainly connect the challenged measure(s) with the
provision(s) of the covered agreements claimed to have been
infringed, so that the respondent party is aware of the basis
for the alleged nullification or impairment of the complaining
party's benefits.
Given that such a requirement applies to panel requests at the outset
of a panel proceeding, we are of the view that a prima facie case –
made in the course of submissions to the panel – demands no less of
the complaining party. The evidence and arguments underlying a
prima facie case, therefore, must be sufficient to identify the
challenged measure and its basic import, identify the relevant WTO
provision and obligation contained therein, and explain the basis for
the claimed inconsistency of the measure with that provision.'
Thus, notwithstanding the fact that the United States is not seeking to refute
Ecuador's claims, we must satisfy ourselves that Ecuador has established a prima
facie case of violation, and notably that it has presented 'evidence and argument ...
sufficient to identify the challenged measure and its basic import, identify the relevant
WTO provision and obligation contained therein, and explain the basis for the
claimed inconsistency of the measure with that provision'.