Le fardeau de preuve : constat prima facie d’un décalage entre théorie et pratique, et de la nécessité d’une théorie de la preuve à l’OMC

The dispute settlement system of the WTO is known for its efficiency and predictability. More than any other jurisdiction in public international law, the WTO Dispute Settlement Body (DSB) must administer the evidence brought before it by complainants or defendants from Member States. In theory, evidence law should be applied in the WTO dispute settlement system as it is in many well established legal regimes. However, an analysis of the WTO case law reveals that, in practice, concepts like presumption, the case of prima facie and, more generally, the attribution and appreciation of evidentiary burden and burden of persuasion are applied quite inconsistently. A legal theory on the administration of evidence before the DSB proves to be necessary.