Abstract

The Understanding on Rules and Procedures Governing the Settlement of Disputes (the "DSU") provides general guidance but few direct answers to specific questions regarding the process of fact-finding before World Trade Organization (WTO) panels. Therefore, in order to render the dispute settlement system effective, panels and the Appellate Body have had to provide answers to those questions as they arose in the cases. In the light of this, the main objectives of this dissertation are (i) to determine whether panels and the Appellate Body have set out optimal rules to govern the process of fact-finding and, to the extent that that is not the case, (ii) to make suggestions for improvement.

Chapter 1 lays out the framework according to which that assessment is conducted and suggestions developed. Pursuant to that framework this dissertation seeks to determine (a) whether the solutions developed by panels and the Appellate Body maximize the goals of the WTO dispute settlement system among which are accuracy, participation, impartiality, equality, good faith cooperation, the efficient use of resources (time and money), and the protection of confidential information; (b) whether panels and the Appellate Body have efficiently managed uncertainty and the related risk of error which are constant features of the process of fact-finding in legal adjudication; (c) whether the rules developed are in harmony with the basic structure of the WTO dispute settlement system laid out in the DSU. In making these assessments, particularly in relation to the last factor, this dissertation draws on the approaches followed in the two major legal systems of the world, the common law and the civil law, and to the extent possible the approaches adopted by other international courts and tribunals.

Chapters 2 through 5 cover the main aspects of the process of fact-finding including the questions of (i) which party bears the responsibility of ultimately convincing the panel of the truth of a claim; (ii) what quantum of proof is necessary to convince the panel of the truth of a claim; and (iii) what the role of the panel and the disputing parties is in the development of the factual record on which the panel bases its decision on a claim.