The Legal Analysis, Third Edition
Chapter 4: Article 2 - general conditions
The standard of review and the burden of proof, which are to be applied by dispute settlement panels in specific dispute cases, are preliminary but important issues. By setting the bounds of review applied to national investigations and applications of safeguards, the standard of review not only provides the panels with a benchmark for their review but also affects the conduct of national authorities in the investigation and application of a safeguard measure. The standard of review can determine the amount of discretion that the national authorities enjoy in the application of a safeguard, thereby affecting the extent of control that the WTO disciplines have on safeguard investigations and applications. It is also important to determine which party bears the burden of proof to establish a prima facie case. This chapter begins with a discussion of the standard of review and the burden of proof, and proceeds to examining the general conditions for the application of a safeguard measure under SA Article 2. The applicable standard of review has been a contentious issue. Unlike the Anti-Dumping Practices Agreement, the Agreement on Safeguards does not specify the applicable standard of review. The Panel in Korea - Dairy Products, referring to the Appellate Body's findings in European Communities - Hormones, provides that the provisions of Article 11 of the DSU are applicable if the relevant WTO multilateral trade agreement does not provide for a specific standard of review.
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