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The burden of proof in trade disputes and the environment

Author

Listed:
  • Horn, Henrik
Abstract
The WTO leaves discretion over environmental policies to its members, but requests that a fundamental non-discrimination principle is respected: National Treatment (NT). The provision seeks to prevent protectionist use of domestic policy instruments, requesting that when an imported product is sufficiently similar to a domestic product, they are treated identically. WTO adjudicators will often face severe informational problems in environmental disputes. Important for the practical implementation of NT is therefore the allocation of the burden of proof (BoP). This paper highlights basic implications of the BoP for the occurrence of judicial errors, for the environment and for welfare, using a setting where NT serves its intended role of supporting negotiated tariff liberalization. The paper suggests that NT may indeed constrain environmental policies, but that this may be desirable from an efficiency point of view. Also, BoP rules that benefit the environment may not benefit global welfare, and conversely.

Suggested Citation

  • Horn, Henrik, 2011. "The burden of proof in trade disputes and the environment," Journal of Environmental Economics and Management, Elsevier, vol. 62(1), pages 15-29, July.
    • Handle: RePEc:eee:jeeman:v:62:y:2011:i:1:p:15-29
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    References listed on IDEAS

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    1. Kamal Saggi & Nese Sara, 2018. "National Treatment At The Wto: The Roles Of Product And Country Heterogeneity," World Scientific Book Chapters, in: Kamal Saggi (ed.), Economic Analysis of the Rules and Regulations of the World Trade Organization, chapter 3, pages 46-75, World Scientific Publishing Co. Pte. Ltd..
    2. Horn, Henrik & Mavroidis, Petros C., 2008. "The Permissible Reach of National Environmental Policies," Working Paper Series 739, Research Institute of Industrial Economics, revised 20 Jun 2008.
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    8. Chris William Sanchirico, 2008. "A Primary-Activity Approach to Proof Burdens," The Journal of Legal Studies, University of Chicago Press, vol. 37(1), pages 273-313, January.
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    Cited by:

    1. Yang, Deli & Sonmez, Mahmut (Maho), 2018. "Global norm of national treatment for patent uncertainties: A longitudinal comparison between the US and China," Journal of World Business, Elsevier, vol. 53(2), pages 164-176.
    2. Ferrara, Ida & Missios, Paul & Yildiz, Halis Murat, 2019. "Product quality, consumption externalities, and the role of National Treatment," European Economic Review, Elsevier, vol. 117(C), pages 1-35.
    3. Johannesson, Louise, 2016. "Supporting Developing Countries in WTO Dispute Settlement," Working Paper Series 1120, Research Institute of Industrial Economics.
    4. Ida Ferrara & Paul Missios & Halis Murat Yildiz, 2015. "Pollution havens, endogenous environmental policy, and foreign direct investment," Southern Economic Journal, John Wiley & Sons, vol. 82(1), pages 257-284, July.
    5. Paul Missios & Ida Ferrara & Halis Murat Yildiz, 2015. "Consumption Externalities, Product Quality, and the Role of National Treatment," Working Papers 048, Toronto Metropolitan University, Department of Economics.

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