Decisions of the WTO tribunal (Court) on sensitive disputes, such as those concerning human health, have often caused resentment from some groups, besides losing parties. Beneath this disapproval against the Court lies an image of a Dworkinian Hercules which capriciously renders its own answers on risks and science. In judging which party should win the case, this Hercules assesses parties' arguments and evidence on risks and regulatory responses through a technical rule labeled the “burden of proof” (BOP). Yet, the BOP is more of the Court's burden than of parties' burden (who to prove) in that the final outcome of the case hinges eventually on those elements which the Court requires parties to prove (what to prove) as well as whether the Court approves that a party has discharged its BOP and allows the burden to shift to the other party (whether to prove). However, the Court, with its judicial authority, employs the BOP in a way which defines and constructs its own version of science to deliver a definite answer to litigants. As long as the Court plays the role of Hercules by handing down actuarial justice on issues of high controversy, such as risks and science, whatever decision it makes will hardly satisfy the parties concerned, at least the losing party, and thus never fully resolving their disputes.
If the Court's own answer (substantive justice) cannot put an end to parties' antimonial struggle, the Court should contemplate guiding parties to discover the solution between them via constructive regulatory dialogue. In other words, the Court, instead of throwing out its own “right answer” in front of already dogmatic parties, might encourage them to fulfill their dialectical dialogue through talking to, deliberating with, and enlightening each other. This nuanced judicial posture can greatly mitigate any unnecessary adversarial tensions, which will in turn secure a certain space for accommodation or recognition of different regulatory positions. The Court can achieve this new goal by transforming its current substantive hermeneutics over the BOP into a “procedural” one. The Court can lead parties to present different probative evidence, i.e., evidence substantiating the procedural integrity of a measure, from the conventional one, i.e., evidence adduced to prove that the measure was scientifically valid.
Of the World Trade Court's Burden,
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